USA v. JAMES V. MAZZO, DOUGLAS V. DECINCES, DAVID L. PARKER, AND F. SCOTT JACKSON

Case 8:12-cr-00269-AG Document 435 Filed 06/29/15 Page 1 of 57 Page ID #:9630
1 RICHARD MARMARO (Bar No. 091387)

[email protected]
2 CLIFFORD M. SLOAN (pro hac vice pending)
[email protected]
3 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
300 South Grand Avenue
4 Los Angeles, California 90071-3144
Telephone: (213) 687-5000
5 Facsimile: (213) 687-5600
6 Attorneys for Defendant James V. Mazzo
7
8
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
10
SOUTHERN DIVISION
11
12 UNITED STATES OF AMERICA,
CASE NO.: 8:12-cr-00269(B)-AG
13
(1) DEFENDANT JAMES V.

MAZZOS OPPOSITION TO THE
GOVERNMENTS
SUPPLEMENTAL BRIEF IN
SUPPORT OF GOVERNMENTS
MOTION TO REVISIT JUDICIAL
INQUIRY INTO CONFLICTS OF
INTEREST AFFECTING
DEFENDANT JAMES V. MAZZO;
Plaintiff,
14
15
16
v.
JAMES V. MAZZO, DOUGLAS V.

17 DECINCES, DAVID L. PARKER,
AND F. SCOTT JACKSON,
18
19
20
Defendants.
(2) DECLARATION OF JAMES V.

MAZZO;
(3) DECLARATION OF DEBRA
WONG YANG;
21
(4) DECLARATION OF BRIAN J.

MCCARTHY;
22
(5) DECLARATION OF RICHARD

MARMARO;
23
24
(6) DECLARATION OF GEOFFREY

C. HAZARD, JR.; and
25
(7) DECLARATION OF CLIFFORD

M. SLOAN.
26
Hon. Andrew J. Guilford
27
Date:
Time:
Courtroom:
Trial Date:
28
July 13, 2015

2:00 p.m.
10D
TBD
TABLE OF CONTENTS
2 1.
INTRODUCTION ...........................................................................................1
3 2.
FACTUAL AND PROCEDURAL BACKGROUND....................................4
2.1
The Mistakes at Issue ............................................................................5
2.2
Actions Taken To Correct The Record .................................................6
2.3
Skaddens Representation Of Mr. Mazzo Commenced Between

February 10 and February 20, 2009, While The Firm Represented
AMO For Related Matters. ...................................................................9
2.4
Corrections To The Governments Statement Of Facts......................11
7
8
9
2.4.1 The Mistakes at Issue................................................................11
10
2.4.2 Attribution of Mr. Waxmans Mistakes to Mr. Marmaro ........12
11
2.4.3 Peter Morrisons Testimony .....................................................12
12
2.4.4 Diane Biagiantis Declaration...................................................14
13
2.4.5 Mr. Mazzos May 12, 2011 Declaration And Waiver..............14
14
2.4.6 This Courts August 10, 2011 Order ........................................15
15
2.5
16 3.
ARGUMENT.................................................................................................17
17
3.1
18
19
20
21
22
23
24
25
Skadden Remains Mr. Mazzos Counsel Of Choice ..........................16
THERE IS NO CONFLICT OF INTEREST JUSTIFYING

DISQUALIFICATION OF MR. MAZZOS COUNSEL OF
CHOICE. .............................................................................................20
3.1.1 There Is No Disqualifying Conflict of Interest Arising Out
of Skaddens Prior Representation of AMO.............................21
3.1.1.1 Skaddens Concurrent Representation of Mr.
Mazzo and AMO Does Not Give Rise to a
Disqualifying Conflict of Interest...................................21
3.1.1.2 Skaddens Successive Representation of Mr. Mazzo
and AMO Does Not Give Rise to a Disqualifying
Conflict of Interest..........................................................23
(a)
AMO Could Not Reasonably Have Believed

That Mr. Mazzo Would Receive Confidential
Information From Skadden. .................................24
(b)
AMO Has Consented to Skaddens

Representation of Mr. Mazzo...............................28
26
27
28
3.1.1.3 The Government Has Not Shown that Skaddens

Prior Representation of AMO Will Affect Its CrossExamination of Witnesses at Mr. Mazzos Trial and
Create a Disqualifying Conflict of Interest. ...................31
2
3
3.1.2 There Is No Disqualifying Conflict of Interest Between

Skadden and Mr. Mazzo. ..........................................................34
4
5
3.2
MR. MAZZO HAS WAIVED ANY CONFLICT OF INTEREST. ..38
3.3
THE GOVERNMENTS SUPPOSED CONCERNS ABOUT

THE INTEGRITY OF THE JUDICIAL PROCESS DO NOT
SUPPORT DISQUALIFICATION.....................................................43
7
8 4.
CONCLUSION .............................................................................................50
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ii
TABLE OF AUTHORITIES
2 Cases
3 Allegaert v. Perot,
565 F.2d 246 (2d Cir. 1987) ............................................................................. 26
4
Baker Manock & Jensen v. Superior Court,
5
175 Cal. App. 4th 1414 (2009)......................................................................... 20
6 Bird v. PSC Holdings I, LLC,
Civil No. 12-CV-1528W(NLS), 2014 WL 1389327 (S.D. Ca. Apr. 8,
7
2014)................................................................................................................. 35
8 Boston Scientific Corp. v. Johnson & Johnson Inc.,
647 F. Supp. 2d 369 (D. Del. 2009) ................................................................. 22
9
California Service Employees Health & Welfare Trust Fund v. Advance
10
Building Maintenance,
No. C-06-3078 CW, 2009 WL 593785 (N.D. Cal. Mar. 4, 2009) .............26, 27
11
Certain Underwriters at Lloyd's London v. Argonaut Ins. Co.,
12
264 F. Supp. 2d 914 (N. D. Cal. 2003) ........................................................... 23
13 Christensen v. U.S. District Court for Central District California,
844 F.2d 694 (9th Cir. 1988)..........................................................25, 26, 27, 28
14
City & County of San Francisco v. Cobra Solutions, Inc.,
15
38 Cal. 4th 839 (2006)..........................................................................21, 24, 25
16 Cohen v. Acorn International, Ltd.,
921 F. Supp. 1062 (S.D.N.Y. 1995) ................................................................. 27
17
In re County of Los Angeles,
18
223 F.3d 990 (9th Cir. 2000)............................................................................ 20
19 CQS ABS Master Fund Ltd. v. MBIA Inc.,
No. 12 Civ. 6840(RJS), 2013 WL 3270322 (S.D.N.Y. June 24, 2013)........... 23
20
Crenshaw v. MONY Life Insurance Co.,
21
318 F. Supp. 2d 1015 (S.D. Cal. 2004) ............................................................ 49
22 Export Development Corp. v. Uniforms for Industry, Inc.,
No. 88-CV-2496 (ARR), 1991 WL 10929 (E.D.N.Y. Jan. 25, 1991) .......23, 30
23
Flatt v. Superior Court,
24
9 Cal. 4th 275 (1994)..................................................................................24, 30
25 Forrest v. Baeza,
58 Cal. App. 4th 65 (1997)............................................................................... 26
26
Gilbert v. National Corp. for Housing Partnerships,
27
71 Cal. App. 4th 1240 (1999)........................................................................... 22
28 Great Lakes Construction, Inc. v. Burman,
186 Cal. App. 4th 1347 (2010)...................................................................21, 22
iii
1 Gurniak v. Emilsen,
995 F. Supp. 2d 262 (S.D.N.Y. 2014).............................................................. 27
2
Hetos Investments, Ltd. v. Kurtin,
3
110 Cal. App. 4th 36 (2003)............................................................................. 49
4 Lockhart v. Terhune,
250 F.3d 1223 (9th Cir. 2001).......................................................................... 39
5
MacArthur v. San Juan County,
6
NO. 2:00CV584K, 2001 WL 1806855 6 (D. Utah Mar. 6, 2001) ................. 22
7 In re Marvel,
251 B.R. 869 (Bankr. N.D. Cal. 2000)............................................................. 17
8
Neiman v. Local 144, Hotel, Hospital, Nursing Home & Allied Health Services
9
Union, AFL-CIO,
512 F. Supp. 187 (E.D.N.Y. 1981)................................................................... 27
10
Optyl Eyewear Fashion International Corp. v. Style Companies, Ltd.,
11
760 F.2d 1045 (9th Cir. 1985).......................................................................... 17
12 Pirelli Armstrong Tire Corp. Retiree Medical Benefits Trust v.
LaBranche & Co.,
13
229 F.R.D. 395 (S.D.N.Y. 2004)................................................................22, 23
14 Robert Bosch Healthcare Systems, Inc. v. Cardiocom,
No. C-14-1575 EMC, 2014 2703807 (N.D. Cal. June 13, 2014) .................... 18
15
Shaffer v. Farm Fresh, Inc.,
16
966 F.2d 142 (4th Cir. 1992)............................................................................ 38
17 Shire Laboratories Inc. v. Nostrum Pharmaceuticals., Inc.,
Civil Action No. 03-4436 (MLC), 2006 WL 2129482 (D.N.J. July 26,
18
2006)................................................................................................................. 22
19 Simonca v. Mukasey,
No. CIVS081453FCDGGH, 2008 WL 5113757
20
(E.D. Cal. Nov. 25, 2008)................................................................................. 17
21 State Farm Mutual Automobile Insurance Co. v. Federal Insurance Co.,
72 Cal. App. 4th 1422 (1999)........................................................................... 22
22
In re Syntex Corp. Securities Litigation,
23
855 F. Supp. 1086 (N.D. Cal. 1994)................................................................. 26
24 Trone v. Smith,
621 F.2d 994 (9th Cir. 1980)............................................................................ 28
25
Trust Corp. of Montana v. Piper Aircraft Corp.,
26
701 F.2d 85 (9th Cir. 1983) ..................................................................28, 29, 30
27 United States v. Bolivar,
No. CR 12-0128 JB, 2012 WL 3150430 (D.N.M. July 20, 2012) .............31, 32
28
United States v. Collins,
920 F.2d 619 (10th Cir. 1990)........................................................46, 47, 48, 49
iv
1 United States v. Curcio,

680 F.2d 881 (2d Cir. 1982) ............................................................................. 39
2
United States v. Dhaliwal,
3
468 F. App'x. 666 (9th Cir. 2012) ..............................................................40, 42
4 United States v. Elliot,
463 F.3d 858 (9th Cir. 2006)......................................................................36, 37
5
United States v. Fulton,
6
5 F.3d 605 (2d Cir. 1993) ................................................................................. 40
7 United States v. Gehl,
852 F. Supp. 1135 (N.D.N.Y. 1994) ..........................................................32, 33
8
United States v. Gonzalez-Lopez,
9
548 U.S. 140 (20060.............................................................................18, 36, 49
10 United States v. Huynh,
No. 08cr2288 BTM-1, 2009 WL 799406 (S.D. Cal. Mar. 24, 2009) ........32, 33
11
United States v. Iorizzo,
12
786 F.2d 52 (2d Cir. 1986) ............................................................................... 39
13 United States v. Martinez,
143 F.3d 1266 (9th Cir. 1998)........................................................38, 39, 40, 43
14
United States v. Murray,
15
No. CR-12-0278 EMC, 2013 WL 942514 (N.D. Cal. Mar. 11, 2013) ............ 42
16 United States v. Penn,
151 F. Supp. 2d 1322 (D. Utah 2001) ........................................................31, 32
17
United States v. Perez,
18
325 F.3d 115 (2d Cir. 2003) ...........................................................37, 40, 41, 42
19 United States v. Ruehle,
583 F.3d 600 (9th Cir. 2009)............................................................................ 35
20
United States v. Salyer,
21
No. CR. S-10-061 LKK, 2011 WL 3665017 (E.D. Cal. Aug. 19, 2011)......... 19
22 United States v. Scarpacci,
731 F. Supp. 2d 341 (S.D.N.Y. 2010).............................................................. 40
23
United States v. Schwarz,
24
283 F.3d 76 (2d Cir. 2002) ............................................................................... 41
25 United States v. Stites,
56 F.3d 1020 (9th Cir. 1995)..........................................................45, 46, 47, 48
26
United States v. Turner,
27
594 F.3d 946 (7th Cir. 2010)............................................................................ 18
28 United States v. Walton,
703 F. Supp. 75 (S.D. Fla. 1988)..........................................................46, 47, 49
v
1 United States v. Washington,

797 F.2d 1461 (9th Cir. 1986)..............................................................18, 44, 49
2
United States v. VanHoesen,
3
No. 06-CR-411 (LEK/DRH),
2007 WL 2089692 (N.D.N.Y. July 19, 2007 .......................................33, 40, 42
4
Western Sugar Cooperative v. Archer-Daniels-Midland Co.,
5
No. CV 11-3473 CBM (MANx),
2015 WL 690306 (C.D. Cal. Feb. 13, 2015).................................................... 23
6
Wal-Mart Stores, Inc. v. Vidalakis,
7
No., 07-0039, 2007 WL 4468688 (W.D. Ark. Dec. 17, 2007) ........................ 33
8 Wheat v. United States,
486 U.S. 153 (1988) ......................................................................................... 43
9
White v. Experian Information Solutions,
10
993 F. Supp. 2d 1154 (C.D. Cal. 2014)......................................................17, 18
11 Wild Game NG, LLC v. Wong's International (USA) Corp.,
No. 3:05-CV-635-LRH (RAM),
12
2006 WL 3434379(D. Nev. Nov. 29, 2006)..................................................... 29
13 Yee v. Ventus Capital Services,
No. C, 05-03097(RS),
14
2006 WL 3050827 (N.D. Cal. Oct. 26, 2006)............................................18, 33
15
16
17
18
19
20
21
22
23
24
25
26
27
28
vi
1 1.
INTRODUCTION
The governments motion to disqualify is based on mistakes made by an ex
3 Skadden partner regarding the existence of exculpatory notes from an interview of a

4 key witness; notes from a privileged conversation with the defendant; and mistaken
5 conclusions as to whether Skadden, Arps, Slate, Meagher & Flom LLP (Skadden)
6 represented only defendant Mazzo, or both Mr. Mazzo and Advanced Medical
7 Optics (AMO) concurrently in 2009. There is no dispute that (1) Mr. Mazzo has
8 always believed that Skadden represented him at all relevant times; (2) AMO knew
9 at least as of July 2009 that Skadden was representing Mr. Mazzo in this matter;
10 (3) Mr. Mazzo waives any conflicts and has reiterated, after consulting with
11 independent counsel, that he wants Skadden to continue to represent him; and (4)
12 AMO has not asserted any conflicts.
13
The legal issue before this Court is Mr. Mazzos Sixth Amendment right to his
14 counsel of choice in defending against the criminal charges brought by the

15 government. In a brief long on inflammatory rhetoric, ad hominem attacks, and
16 unwarranted inferences drawn from the mistakes made or caused to be made by a
17 former partner at Skadden who is no longer involved in this case or associated with
18 the firm, the government seeks the extraordinary remedy of denying a criminal
19 defendant his chosen counsel who has been representing him for six years and who
20 has committed no misconduct here. At bottom, the government has fallen far short
21 of establishing any basis for taking such a far-reaching and rights-denying action.
22
At the outset, the former Skadden partner has apologized for the mistakes that
23 he made or caused to be made in this case. Skadden sincerely regrets these mistakes
24 and has worked diligently to disclose and correct them over the past several months.
25 The new developments do not in any way, however, undermine Mr. Mazzos
26 fundamental right to retain his counsel of choice in the very serious criminal
27 proceedings he faces. Under settled principles, there is no disqualifying conflict of
28 interest presented by the facts of this case. And, even assuming arguendo that there
1
1 were a conflict that might bear on representation, Mr. Mazzo is fully entitled, under
2 settled case law, to make his own decision: he has the right to waive the asserted
3 conflicts and proceed to trial with his chosen counsel, Richard Marmaro and
4 Skadden.
5
In its Supplemental Brief in Support of Governments Motion to Revisit
6 Judicial Inquiry Into Conflicts of Interest Affecting Defendant James V. Mazzo

7 (Supplemental Brief), the government seeks to paper over the legal deficiencies of
8 its position by ignoring Mr. Mazzos constitutionally protected choice of counsel.
9 The government also makes unsupported, inflammatory, and false inferences from
10 the factual record.
Most prominently, without any basis in the record, the
11 government argues that the mistakes reflect intentional misrepresentations, and that
12 the self-acknowledged mistakes of former Skadden partner Eric Waxman should be
13 attributed to Mr. Marmaro. In sharp contrast to the governments unsupported and
14 objectionable inferential arguments in its brief to this Court, the lead SEC counsel in
15 the parallel civil proceedingwho in many ways is more versed in the facts relating
16 to this motion, including because he actually took the depositions of Mr. Waxman
17 and another Skadden partner regarding these mattersstated explicitly on the record
18 in open court to Judge Carter almost one week before the government filed the
19 Supplemental Brief in this Court, I want to make it very clear that we are not
20 suggesting any wrongdoing by Mr. Marmaro. We had to send the letters that
21 we sent to him because he is lead counsel for the defense, but I wanted to be
22 very clear about that, and we appreciate his professionalism in working through
23 these issues. (Mazzo Ex. A at 13:813 (statement of SEC Senior Trial Counsel
24 Michael J. Rinaldi on June 9, 2015).)1
25
26
Citations to Govt Ex. refer to the exhibits to the governments

Supplemental Brief. Citations to Mazzo Ex. refer to additional exhibits submitted
27 by Mr. Mazzo herewith, which are attached to the Declaration of Clifford M. Sloan.
The five declarations submitted with this opposition are referred to by name. See
28 infra n.2.
2
For three fundamental reasons, the Court should reject the governments
2 attempt to prevent Mr. Mazzo from defending against the governments charges with
3 his chosen counsel.
4
First, the government has not met its heavy burden of demonstrating a conflict
5 of interest that justifies disqualifying Skadden and Mr. Marmaro. Despite repeating
6 throughout the Supplemental Brief the list of mistakes that Mr. Waxman made or
7 caused to be made, the government fails at the most basic level to establish how any
8 recent disclosures demonstrate a disqualifying conflict. In reality, the undisputed
9 facts establish that no disqualifying conflict is present. The governments argument
10 to the contrary rests on a fundamental misunderstanding of the law, layers of
11 impermissible speculation, or both.
Notably, moreover, the government would
12 obtain a very significant tactical advantage were it to succeed in disqualifying Mr.

13 Marmaro and Skadden.
14
Second, even assuming arguendo that the existence of one or more of the
15 conflicts of interest posited by the government might apply to Skaddens

16 representation of Mr. Mazzo, he is entitled to waive his right to conflict-free counsel.
17 The importance of Mr. Mazzos Sixth Amendment right to counsel of his choice
18 prevails over the governments attempt to have this Court unilaterally remove Mr.
19 Marmaro and Skadden from this litigation, particularly because there are reasonable
20 alternative measures that may be employed to address any issue and avoid the
21 draconian action sought by the government.
A defendants waiver may be
22 overridden only if the government is able to demonstrate a conflict sufficiently

23 egregious that no rational defendant would proceed without a substitution of
24 counsel. But the government has not come remotely close to meeting this steep
25 burden, which is satisfied in only the rarest of circumstances.
26
Third, the government broadly suggests that, regardless of the conflicts and
27 waiver analysis, this Court nevertheless should deny Mr. Mazzo his chosen counsel
28 in the general interest of the administration of justice. The general interest in the
3
1 administration of justice simply does not overcome Mr. Mazzos choice of counsel
2 here, especially when the governments position is supported only by unwarranted
3 inferences and unsupported accusations against counsel. While Skadden in no way
4 minimizes the significance of the previous mistakes, the government, in its attempt
5 to have this Court deny Mr. Mazzo his desired counsel, deviates conspicuously from
6 the record, states unjustified conclusions as facts, and launches unwarranted
7 accusations. In any event, the conduct alleged is far from the kind of action that
8 would justify such an extreme sanction on grounds of judicial integrity, particularly
9 because it would severely penalize the defendant.
10
Accordingly, the Court should deny the governments motion to disqualify
11 Skadden and allow Mr. Mazzo to confront the criminal charges against him with the
12 counsel of his choosing.2
13 2.
FACTUAL AND PROCEDURAL BACKGROUND
14
For the benefit of the Court, five background areas are particularly important
15 in considering the governments motion: (1) the mistakes at issue; (2) actions taken
16
17
18
19
20
21
22
23
24
25
26
27
28
In addition to a complete response to the government in this opposition,

attached are five declarations that address and rebut each of the governments
assertions: (1) a declaration by Mr. Mazzo explaining that he has consulted with
experienced independent counsel about the governments statements and positions
and has decided to proceed with Skadden as his counsel (Mazzo Decl.); (2) a
declaration by Debra Wong Yang, former United States Attorney and Los Angeles
Superior Court Judge, explaining that, as independent counsel, she has discussed
with Mr. Mazzo the governments statements and positions, and that Mr. Mazzo has
decided to proceed with Skadden as his counsel (Yang Decl.); (3) a declaration by
Skadden partner Brian J. McCarthy confirming that he had a conversation with Mr.
Mazzo in February 2009 that resulted in Mr. Waxman calling Mr. Mazzo about this
case (McCarthy Decl.); (4) a declaration from Mr. Marmaro explaining the actions
that were taken to correct the record when the previous mistakes came to his
attention and to the attention of others at Skadden (Marmaro Decl.); and (5) a
declaration from renowned ethics expert Professor Geoffrey C. Hazard, Jr.
explaining that he has reviewed the governments brief and has concluded that, under
settled principles, there is no basis for disqualifying Skadden from representing Mr.
Mazzo (Hazard Decl.).
4
1 by Skadden to correct the record; (3) Skaddens concurrent representation of Mr.

2 Mazzo and AMO in 2009; (4) corrections to the governments statement of facts in
3 its Supplemental Brief; and (5) Mr. Mazzos informed decision to proceed with his
4 counsel of choice. A review of the facts makes clear that Skadden has moved
5 expeditiously to identify and remedy previous mistakes as soon as they came to the
6 firms attention; the government has erroneously made unsupported and
7 objectionable inferences in an effort to support its disqualification request; and Mr.
8 Mazzo has consistently reiterated his desire to be represented by Skadden and Mr.
9 Marmaro, notwithstanding the governments conflict allegations.
10
2.1
11
Skaddens motion to quash the 2009 grand jury subpoena of Eric Waxman and
The Mistakes at Issue
12 the firms 2011 and 2015 briefing in opposition to the governments judicial inquiry
13 motions contain several mistakes that Mr. Waxman made or caused to be made.
14 (Marmaro Decl. 9; Govt Ex. 50.) These mistakes and others were made in the
15 SECs civil case as well, in connection with a number of discovery disputes. (See
16 Supp. Br. 2329.) These statements erroneously characterized the existence of notes
17 evidencing the interview of co-defendant Doug DeCinces; the existence of notes
18 evidencing a privileged conversation with Mr. Mazzo; the nature, scope, and
19 duration of the firms representation of AMO; and the beginning date of the firms
20 representation of Mr. Mazzo, among other details. Mr. Waxman has testified that
21 these mistakes were unintentional, and that he made or caused to be made all of them.
22 (Mazzo Ex. B, Waxman Dep. 82, 216; Govt Ex. 50 2.)
23
The governments Supplemental Brief reproduces those mistakes in their
24 entirety, and repeatedly emphasizes their duration and number. (Supp. Br. at 2338,
25 47.) Skadden intends in no way to downplay the seriousness of making a mistake
26 about a fact to a Court or the government, however unintentional the mistakes were.
27 It bears noting, however, that the mistakes made or caused to be made by Mr.
28 Waxman pertain to three areas(1) the representation of AMO and Mr. Mazzo in
5
1 early 2009, (2) the circumstances and work product of the DeCinces interview in
2 March 2009, and (3) the existence of notes of a privileged conversation with Mr.
3 Mazzo in February 2009. (Govt Ex. 50; Supp. Br. 2329.)
4
2.2
On February 10, 2015, Mr. Marmaro produced the DeCinces interview
Actions Taken To Correct The Record
6 memorandum. Thereafter, during the week of February 16, 2015, Skadden located
7 notes taken by Mr. Waxman and Mr. Morrison during the DeCinces interview, and
8 they were immediately brought to Mr. Marmaros attention. (Marmaro Decl. 4.)
9 Prior to that week, Mr. Marmaro relied in good faith on statements made to him by
10 Mr. Waxman to the effect that only Mr. Waxman had taken notes and that those
11 notes were discarded when Mr. Waxman drafted his interview memorandum in 2009.
12 (Id.) Likewise, the entire Skadden team defending Mr. Mazzo relied in good faith on
13 Mr. Waxmans representations. (Id.) Mr. Marmaro had no personal knowledge
14 about these matters, and was not involved in Mr. Mazzos representation at the time
15 the DeCinces interview occurred. (Id.)
16
When Mr. Marmaro learned of the existence of the notes of the DeCinces
17 interview, he promptly prepared and filed a declaration to this Court on February 20,
18 2015 that explained what he had learned that week. (Marmaro Decl. 5; ECF No.
19 376.)
With his declaration, Mr. Marmaro submitted the notes under seal and
20 withdrew any statement made to the Court, the SEC, or the government concerning
21 the DeCinces interview, the typed memorandum thereof, or the existence of the
22 handwritten notes. (Marmaro Decl. 5.) The same day, Mr. Marmaro also sent a
23 letter to the SEC disclosing and producing the recently discovered notes, and
24 withdrawing any statement made to the Court, the SEC, or the government
25 concerning the DeCinces interview, the typed memorandum thereof, or the existence
26 of the handwritten notes. (Id. 6.)
27
Soon after filing the declaration and sending the letter to the SEC, Mr.
28 Marmaro was made aware for the first time of the existence of undated and
6
1 unlabeled notes taken by Mr. Waxman and Mr. Morrison, at least some portions of
2 which likely reflected one or more privileged conversations with Mr. Mazzo.
3 (Marmaro Decl. 7.) As with the DeCinces interview notes, Mr. Marmaro had
4 previously relied in good faith on statements made to him by Mr. Waxman to the
5 effect that no notes from the privileged conversation with Mr. Mazzo existed. (Id.)
6 Likewise, the entire Skadden team defending Mr. Mazzo relied in good faith on Mr.
7 Waxmans representations. (Id.) Mr. Marmaro had no personal knowledge about
8 these notes. (Id.) In response to document requests that accompanied the SECs
9 subpoenas served on Mr. Waxman and Mr. Morrison in the related civil case,
10 Skadden listed the Mazzo notes on a privilege log provided to the SEC. (Id. 8.)
11
In response to those same document requests, Skadden also produced
12 responsive, non-privileged documents relevant to the timing and scope of its

13 representation of Mr. Mazzo and AMO in 2009. (Id.) As a result of that review and
14 production, on April 8, 2015 (prior to his deposition), Mr. Waxman voluntarily
15 submitted a list of corrections to factual mistakes he made or caused to be made to
16 the SEC.
(Id. 9.)
After additional review of records and court filings, Mr.
17 Waxman voluntarily submitted declarations in this matter and the related SEC civil
18 matter withdrawing and correcting additional erroneous factual assertions, and
19 apologizing to the courts, the U.S. Attorneys Office, and the SEC. (Id.; Govt Ex.
20 50.) Mr. Waxman acknowledged that he personally made or caused to be made all
21 of the statements requiring withdrawal and correction. (Govt Ex. 50 2.)
22
During his deposition in the related civil case, Mr. Waxman accepted
23 responsibility for his mistakes under oath. (Mazzo Ex. B, Waxman Dep. 21618.)
24 Similarly, when presented with his erroneous declarations, Mr. Waxman
25 acknowledged his mistakes. (Id. at 82 (This was a mistake. There was no intent to
26 do anything other than reflect what my recollection was at the time.); id. at 216
27 (There were mistakes that I made in connection with this case. I regret that. I
28 havent tried to run away from those mistakes. Theyre clearly mine. But there was
7
1 absolutely no intent to mislead anyone at any time.).)
Apart from failing to
2 discover and disclose the notes taken during the DeCinces interview, Mr. Waxman
3 accepted responsibility for incorrectly asserting that the firm represented only Mr.
4 Mazzo, and not also AMO, when interviewing Mr. DeCinces. (Id. at 21819.)
5
Mr. Waxman further acknowledged his mistake in not following up with Mr.
6 Morrison about whom the firm represented in March 2009, particularly in light of the
7 fact that Mr. Morrison recorded his time for the DeCinces interview to the client8 matter number for AMO.
(Id. at 22526, 228.)
Mr. Waxman similarly
9 acknowledged that he obtained no formal written consent from AMO before

10 commencing work for Mr. Mazzo, but made clear that AMO was aware of the
11 representation and that Mr. Waxman perceived no conflict. (Id. at 20506.)
12
When Mr. Waxman was confronted with the erroneous statements referred to
13 above, he corrected the mistakes that had been made and apologized to the Court and
14 the government. (Marmaro Decl. 10.)
15
Mr. Waxman no longer represents Mr. Mazzo and no longer works at Skadden.
16 Other than preparing for his deposition and reviewing the accuracy of previous
17 statements, Mr. Waxman ceased working on this matter and the related civil case
18 shortly after the revelation that handwritten notes of the DeCinces interview did, in
19 fact, exist. (Id. 11.) On May 31, 2015, Mr. Waxman retired from Skadden. (Id.)
20 On June 10, 2015, Skadden filed a formal notice withdrawing Mr. Waxman as one of
21 the lawyers for Mr. Mazzo. (ECF No. 426.)
22
In a hearing before Judge Carter in the civil SEC matter on June 9, 2015, the
23 SECs senior trial counsel Michael Rinaldi stated on the record before Judge Carter,
24 If I could just say on behalf of the Commission, this has been a very difficult issue.
25 I want to make it very clear that we are not suggesting any wrongdoing by Mr.
26 Marmaro. We had to send the letters that we sent to him because he is lead counsel
27 for the defense, but I wanted to be very clear about that, and we appreciate his
28 professionalism in working through these issues. (Mazzo Ex. A at 13:713.)
8
1
2
3
2.3
Skaddens Representation Of Mr. Mazzo Commenced Between

February 10 and February 20, 2009, While The Firm Represented
AMO For Related Matters.
Skaddens representation of Mr. Mazzo and of AMO has been the subject of
4 extensive discussion and corrections. It has been clear that Skadden has represented
5 Mr. Mazzo personally since February 2009. And it likewise has always been clear
6 that the client (Mr. Mazzo) from the outset believed that Skadden was representing
7 him personally at that time through the present.
Additionally, Skadden was
8 concurrently representing AMO in 2009.

9
Mr. Mazzo explained his understanding that Skadden began to represent him
10 [i]n early 2009 in a previously submitted declaration. On August 2, 2011, Mr.

11 Mazzo declared as follows:
12
13
14
15
16
17
18
19
2. In early 2009, Skadden partner Eric. S. Waxman began

representing me regarding potential insider trading
allegations.
3. When the insider trading issue first surfaced in early
2009, I had a conversation with Brian McCarthy of
Skadden our outside corporate counsel who told me he
would speak directly with Diane Biagianti, the general
counsel of Advanced Medical Optics and subsequently the
vice president legal section head of Abbott Medical Optics,
with a recommendation of a securities litigator to assist
me personally in the insider trading inquiry. Mr.
Waxman subsequently contacted me soon thereafter, and
his representation of me commenced.
20 (Mazzo Ex. C 23 (emphasis added).)

21
Mr. Mazzowith full knowledge that Skadden was representing AMO in the
22 corporate transaction at issue in this caseunderstood that Mr. Waxman and

23 Skadden represented him personally as soon as the insider trading issue first
24 surfaced in early 2009. (Id. 3.) The additional Skadden partner referenced by Mr.
25 Mazzo, Brian J. McCarthy, has submitted a declaration recounting the same
26 conversation as the one Mr. Mazzo described. (McCarthy Decl. 5.) Mr. McCarthy
27 also explains that the conversation took place on or around February 10, 2009. (Id.)
28 Mr. McCarthy further confirms that he informed Mr. Mazzo that Skadden would
9
1 look out for his interests and that he asked Eric Waxman to call Mr. Mazzo in that
2 regard. (Id.) As a result of his conversations with Mr. Mazzo and Mr. Waxman, it
3 was clear to Mr. McCarthy that Mr. Mazzo understood that Skadden, through Mr.
4 Waxman, was representing Mr. Mazzo in any matters arising out of the New York
5 Stock Exchanges (NYSE) 2009 inquiry that followed the public announcement of
6 Abbotts acquisition of AMO. (Id.; see also Mazzo Ex. B, Waxman Dep. 100, 208
7 09.)
8
Skadden was outside corporate counsel to AMO for the transaction.
9 (McCarthy Decl. 3.) On January 15, 2009, three days after Abbotts proposed
10 acquisition of AMO was made public, NYSE sent a letter to Ms. Biagianti, then
11 General Counsel of AMO. (Govt Ex. 1.) As is commonly the case when a public
12 company receives such a letter from the NYSE, Skadden, as counsel for the deal,
13 assisted AMO in responding. (McCarthy Decl. 4.) AMOs response was dated
14 February 11, 2009. (Govt Ex. 2.)
15
The NYSE sent a second letter to AMO on February 10, 2009. (Govt Ex. 7.)
16 The second letter listed several individuals and entities, including Douglas DeCinces,
17 and asked AMO to inform the NYSE whether any corporate officials, directors,
18 and/or employees of AMO or its advisors knew anyone on the list. (Id.) Mr.
19 DeCinces was Mr. Mazzos friend and neighbor, and Mr. Mazzos conversation with
20 Mr. McCarthywhich ultimately led to Mr. Waxmans representation of Mr.
21 Mazzooccurred soon after AMO received the letter identifying Mr. DeCinces.
22 (See McCarthy Decl. 45.)
Thus, Skaddens representation of Mr. Mazzo
23 commenced no sooner than February 10, 2009, at a time when Skadden was
24 representing AMO. Simply put, on February 20, 2009 and March 24, 2009, the firm
25 had two clientsMr. Mazzo and AMO. Mr. Morrisons view that he believed the
26 conversation with Mr. Mazzo and the interview of Mr. DeCinces occurred in
27 connection with work for AMO (Mazzo Ex. D, Morrison Dep. 54) is among the
28
10
1 evidence that Skadden has considered in determining that it concurrently represented

2 Mr. Mazzo and AMO on these dates.
3
Critically, Mr. Mazzos own viewwhich has been consistent from the
4 outsetis that Skaddens representation of him individually commenced at the time

5 of his first discussion with Mr. Waxman in early 2009. (Mazzo Ex. C 3.) Mr.
6 Mazzo has confirmed that he had conversations with Mr. Waxman on the
7 understanding that Mr. Waxman was representing him personally in this time period.
8 (Govt Ex. 31 23.) Although the relationship was not memorialized in an
9 executed engagement letter until September 4, 2009 (Govt Ex. 27), Mr. Mazzo has
10 declared that he understood the engagement letter to confirm[] the fact that Skadden
11 represented [him] in connection with the insider trading investigation that
12 commenced months earlier. (Govt Ex. 31 3.) As a result, when Mr. Waxman
13 interviewed Mr. DeCinces on March 24, 2009, it was Mr. Mazzos understanding
14 that he did so as an attorney for Mr. Mazzo. (Id.)
15
2.4
16
On at least six separate points, the government has asserted conclusions that
Corrections To The Governments Statement Of Facts
17 exceed the fair inferences to be drawn from the testimony and documents on which
18 they claim to be based.
19
20
2.4.1 The Mistakes at Issue

Throughout the Supplemental Brief, the government characterizes the
21 mistakes made or caused to be made by Mr. Waxman as intentional.
But
22 conspicuously absent from the governments assertions is even a single shred of

23 evidence that anyone at Skadden intentionally misrepresented anything to the
24 Court or the government. For good reason. There is no evidence of any intentional
25 misrepresentations by anyone at Skadden.
26
To the contrary, the available evidence demonstrates that the mistakes that Mr.
27 Waxman made or caused to be made were inadvertent and not the result of any ill
28 intent. (See, e.g., Marmaro Decl. 10; ECF No. 376 3 (explaining that mistaken
11
1 statements were made in good faith reliance on representations made to me by Mr.

2 Waxman); Mazzo Ex. B, Waxman Dep. 216 (But there was absolutely no intent to
3 mislead anyone at any time.).)
4
2.4.2 Attribution of Mr. Waxmans Mistakes to Mr. Marmaro
The government, throughout its Supplemental Brief, attempts to attribute Mr.
6 Waxmans mistakes to Mr. Marmaro, notwithstanding Mr. Waxmans statements

7 that he made or caused to be made the mistakes at issue. (Govt Ex. 50 2.) The
8 SEC senior counsel has recognized that this is a fundamentally erroneous assertion in
9 his statement on the record to Judge Carter. (Mazzo Ex. A at 13:713.) As an initial
10 matter, Mr. Marmaro was not involved with the case at the time of the DeCinces
11 interview or the privileged conversation with Mr. Mazzowhich formed the basis
12 for the mistakes made during this case and the parallel civil proceeding. (Marmaro
13 Decl. 4, 7.)
And Mr. Marmaro has declaredand the government has not
14 disputedthat Mr. Marmaro had no personal knowledge of any mistakes made by

15 Mr. Waxman and relied in good faith on the representations made by Mr. Waxman.
16 (ECF No. 376, 2/19/15 Marmaro Decl. 3; see also Mazzo Ex. B, Waxman Dep.
17 216.) Mr. Marmaro became aware for the first time of the DeCinces interview notes
18 during the week of February 16, 2015, and of the Mazzo privileged conversation
19 notes shortly thereafter. (Marmaro Decl. 4, 7.)
20
21
2.4.3 Peter Morrisons Testimony

The government claims that the testimony of Mr. Morrison, a Skadden partner,
22 establishes that the firm represented only AMO in February and March of 2009.
23 (Supp. Br. at 9.) That simply is not the case. Mr. Morrison testified only about his
24 own subjective understanding of his role: My understanding at the time was that I
25 was representing the company. (Mazzo Ex. D, Morrison Dep. 83; see also, e.g., id.
26 at 55 (My best recollection of my belief at the time [of the February 20 Mazzo
27 conversation] was that it was done for AMO.); id. at 116 (My understanding at the
28 time [of the DeCinces interview] was that my work in connection with that phone
12
1 call was being done for the company . . . .); id. at 153 ([M]y understanding at the
2 time was that I represented AMO, and so, based on my understanding, I didnt take
3 the position that I was representing someone other than AMO.).)
4
Despite the governments sweeping, categorical claim, it points to no
5 testimony from Mr. Morrison that forecloses the possibility that the firm also
6 represented Mr. Mazzo in February and March of 2009 (and, of course, Mr.
7 Morrison is not the only source of information on Skaddens representations, and he
8 was but a single attorney involved in the AMO representation). Critically, Mr.
9 Mazzo thought that Mr. Waxman (and Skadden) was representing him during the
10 entire time period, including the DeCinces interview (Mazzo Ex. C, 2; Govt Ex.
11 31 2); and Mr. Waxman has testified that he believed in 2009 that he was
12 representing Mr. Mazzo, not AMO, at the time (Mazzo Ex. B, Waxman Dep. 235;
13 see also McCarthy Decl. 5).
14
Similarly, the government also argues that Mr. Morrison gave testimony
15 disagree[ing] with virtually all of the content of a declaration given by Mr.

16 Waxman in 2011 to support the motion to quash his grand jury subpoena, which
17 stated that he represented Mr. Mazzo when interviewing Mr. DeCinces. (Supp. Br.
18 at 14.) Mr. Morrison actually testified about a joint stipulation prepared in the
19 related civil case in 2013, not the motion to quash. (Mazzo Ex. D, Morrison Dep.
20 149153.) He stated that he would not personally have signed the brief associated
21 with Mr. Waxmans 2013 declaration because Mr. Morrisons personal belief was
22 that he represented AMO. [B]ased on my understanding at the time, I wouldnt
23 have signed the document, because it didnt comport with my understanding at that
24 time. (Id. at 153.) As Mr. Morrison further explained in response to the SECs
25 repeated insistence that he opine about Mr. Waxmans assertions, its a hypothetical.
26 This wasnt put in front of me. (Id.) The governments characterization again
27 overstates the record.
28
13
1
2
2.4.4 Diane Biagiantis Declaration

The government asserts that AMO General Counsel Diane Biagianti
3 participated in a telephone conversation that Mr. Waxman and Mr. Morrison had
4 with Mr. Mazzo on February 20, 2009. (Supp. Br. 8.) The government bases its
5 conclusion on emails; Mr. Morrisons time entry for the call; Mr. Morrisons
6 calendar entry for the call; and Mr. Morrisons vague recollection that Ms.
7 Biagianti may have participated. (Id.) The government, however, ignores Ms.
8 Biagiantis own recollections as stated in her declaration.
9
In a declaration procured from Ms. Biagianti by the SEC, she states that Mr.
10 Waxman conducted an interview of Mazzo regarding the NYSEs review of trading

11 in AMO securities on or about February 20, 2009. (Govt Ex. 10 9.) Crucially,
12 she goes on to state that [o]n or about February 20, 2009, but after the interview
13 referenced in the preceding paragraph, I had a conversation with Waxman, during
14 which Waxman summarized his interview of Mazzo regarding the NYSEs review of
15 trading in AMO securities. (Id. 10.) Ms. Biagianti does not claim that she
16 participated in the call. If she had, there would have been no need for Mr. Waxman
17 to contemporaneously summarize the contents of the call.
18
The government likewise cites Ms. Biagiantis declaration as establishing that
19 Skadden was not representing Mr. Mazzo when it interviewed Mr. DeCinces. (Supp.
20 Br. at 89.) This is not supported by the record. Ms. Biagiantis declaration states
21 that Skadden attorneys interviewed Mr. DeCinces in connection with the NYSEs
22 review of trading in AMO securities. (Govt Ex. 10 12.)
Contrary to the
23 governments characterization, she does not state that the firm was not representing
24 Mr. Mazzo as well.
25
26
2.4.5 Mr. Mazzos May 12, 2011 Declaration And Waiver

Mr. Mazzo submitted a declaration dated May 12, 2011 in support of
27 Skaddens motion to quash the grand jury subpoena of Mr. Waxman in which he
28 declared the following:
14
Before Mr. Waxman interviewed Mr. DeCinces, I had

privileged discussions with Mr. Waxman concerning this
matter. At that time, I understood that Mr. Waxman
intended to, and ultimately did, interview Mr. DeCinces in
connection with his representation of me personally.
2
3
4 (Govt Ex. 31 2.) The government states that Marmaro and Waxman caused
5 Mazzo to sign a declaration stating that Waxman conducted the DeCinces interview
6 on his behalf . . . . (Supp. Br. at 15). Remarkably, and without any evidence, the
7 government broadly asserts that Mr. Mazzos declaration was false. Id. at 13.
8
The government has no factual basis to state that Mr. Mazzos declaration is
9 false, or that Skadden procured false testimony. Indeed, Mr. Marmaro was not even
10 involved in the case when the DeCinces interview occurred. (Marmaro Decl. 4.)
11 The governments unsupported and unwarranted ad hominem attacks should not be
12 countenanced; the regrettable mistakes that Mr. Waxman made or caused to be made
13 in this case do not give the government a license to attack the character of the
14 defendant (or his lead counsel).
Mr. Mazzos declaration reflects Mr. Mazzos
15 statement about his own beliefs and understanding, and the government offers
16 nothingnot a scintilla of evidenceto warrant the unjustified accusation that Mr.
17 Mazzos description of his understanding was false. (See Hazard Decl. 8.)3
18
19
2.4.6 This Courts August 10, 2011 Order

On August 10, 2011, this Court denied the governments motion to open a
20 judicial inquiry, after receiving two rounds of supplemental briefing. (Govt Ex. 36.)
21 The government identifies seven assertions made in declarations and in Skaddens
22 briefing on that motion related to Skaddens work for Mr. Mazzo and AMO in 2009,
23 all of which have been withdrawn and corrected.
(Supp. Br. at 1617.)
The
24
25
In the same vein, without any basis or foundation, the government

asserts as fact that Skaddens mistakes reflect a purposeful effort to achieve tactical
26 advantages in this case and the SEC case. (Supp. Br. at 3). This statement is false.
Indeed, it is the government that now seeks the tactical advantage of removing Mr.
27 Mazzos long-time counsel of choice, even though neither Mr. Mazzo nor AMO
the real parties in interest hereever has asserted a conflict or a request for
28 disqualification.
15
1 government then concludes that the Court said it was relying heavily on the
2 declarations submitted by Skadden and Mazzos waiver.
(Id. at 17.)
The
3 governments statement, however, ignores the role that Mr. Mazzos choice of
4 counsel played in the Courts August 10, 2011 Order.
5
Fairly read, the August 10, 2011 Order emphasizes the deference that must be
6 given to Mazzos choice of counsel. (Govt Ex. 36 at 2.) That factor was central to
7 the outcome of the dispute in 2011 (as it should be here), despite what Mr. Marmaro
8 forthrightly acknowledged has not been Skaddens finest hour. (Id.) Moreover,
9 the Court specifically referred to and relied on Mr. Mazzos August 2, 2011
10 declaration regarding his understanding of the representations (id.), which remains
11 perfectly valid and truthful. (The governments Supplemental Brief ignores Mr.
12 Mazzos August 2, 2011 declaration.)4
13
2.5
14
There is one fact of overriding importance given short shrift in the
Skadden Remains Mr. Mazzos Counsel Of Choice
15 governments Supplemental Brief. Skadden is Mr. Mazzos counsel of choice, and

16 has been since 2009. After receiving the governments Supplemental Briefwhich
17 explains, in hyperbolic terms, the governments positions on Skaddens purported
18 conflictsMr. Mazzo consulted with independent counsel about the issues it has
19 raised. (Mazzo Decl. 49; Yang Decl. 1.) After consulting his independent
20 counsel, Mr. Mazzo has expressed his informed decision that Skadden should
21 continue to represent him in this case and the related SEC matter with Mr. Marmaro
22
4
The government also seeks to make much of the Courts order granting
23 Skaddens motion to quash the grand jury subpoena directed to Mr. Waxman
regarding his interview of Mr. DeCinces. Since the motion to quash was granted, Mr.
24 Mazzo has been indicted, and the government and SEC have received (i) Mr.
Waxmans and Mr. Morrisons notes of the DeCinces interview; (ii) Mr. Waxmans
25 memorandum of the interview and drafts thereof; (iii) deposition testimony from Mr.
Waxman and Mr. Morrison about the interview and Mr. DeCincess statements; and
26 (iv) a waiver from Mr. Mazzo as to the fact that both Mr. Waxman and Mr. Morrison
may testify in this case. As a result, the government can identify no prejudice to its
27 current position as a result of the motion to quash proceedings; and, in any event, as
will be discussed, prejudice to the government is not the appropriate test for a motion
28 to disqualify counsel.
16
1 as his lead trial counsel in both cases, notwithstanding the erroneous statements that
2 Mr. Waxman made or caused to be made to the Court and the government. (Mazzo
3 Decl. 917; Yang Decl. 510.) Mr. Mazzo has also expressed a waiver of any
4 conflict of interest Skadden may have as a result of its concurrent or successive
5 representation of AMO, including any Skadden obligation to maintain AMOs
6 confidences, after consulting with his independent counsel. (Mazzo Decl. 917.)
7 Mr. Mazzo stands ready to submit a waiver at the hearing as well, and to respond to
8 any inquiry that the Court might have, if this Court views such a hearing as
9 necessary or appropriate. (Id. 18.)5
10 3.
ARGUMENT
11
Motions to disqualify counsel are strongly disfavored, White v. Experian
12 Info. Solutions, 993 F. Supp. 2d 1154, 1166 (C.D. Cal. 2014), as they often pose the
13 very threat to the integrity of the judicial process that they purport to prevent,
14 Simonca v. Mukasey, No. CIV S-08-1453 FCD GGH, 2008 WL 5113757, at *2 (E.D.
15 Cal. Nov. 25, 2008). For this reason, disqualification motions should be subjected
16 to particularly strict judicial scrutiny. Optyl Eyewear Fashion Intl Corp. v. Style
17 Cos., 760 F.2d 1045, 1050 (9th Cir. 1985); see also White, 993 F. Supp. 2d at 1166
18 ([B]ecause motions to disqualify are often tactically motivated, such motions are
19 strongly disfavored and subject to particularly strict judicial scrutiny.); In re
20 Marvel, 251 B.R. 869, 871 (Bankr. N.D. Cal. 2000) (A motion for disqualification
21 of counsel is a drastic measure which courts should hesitate to impose except when
22 of absolute necessity.). [A]bsent unusual circumstances, then, litigants right to
23
24
25
26
27
28
Skadden, through the office of its General Counsel, attempted to amicably

resolve any issues that the government might have had involving Mr. Mazzos
continued retention of Skadden. (Supp. Br. at 4 n.1.) Skadden offered possible
alternatives to ameliorate any purported conflicts and emphasized its willingness to
work with the government in a cooperative fashion to address any issues. (Mazzo Ex.
E.) But the government simply did not respond. Had it done so, the parties may
have been able to resolve the issues that the government has raised without
burdening this Court and without risking a taint to the jury pool that may well result
from these proceedings.
17
1 counsel of their own choosing . . . outweighs any interests the court or opposing
2 parties might have in precluding those choices. Yee v. Ventus Capital Servs., No. C
3 05-03097(RS), 2006 WL 3050827, at *2 (N.D. Cal. Oct. 26, 2006). And to the
4 extent that a motion to disqualify is based on tactical reasons, courts will not deprive
5 a litigant of his chosen counsel.
See, e.g., Robert Bosch Healthcare Sys. Inc. v.
6 Cardiocom, LLC, No. C-14-1575 EMC, 2014 2703807, at *4 n.2 (N.D. Cal. June 13,
7 2014) ([D]isqualification may not be permitted where tactical abuse motivates the
8 disqualification motion.); see also White, 993 F. Supp. 2d at 1166.
9
A criminal defendants right to counsel of his choice is especially compelling
10 in light of the added constitutional dimension, and the government bears a

11 correspondingly greater burden to prevail on a motion to disqualify in the criminal
12 context. The Supreme Court has explained that [t]he right to select counsel of ones
13 choice . . . has been regarded as the root meaning of the [Sixth Amendments]
14 constitutional guarantee. United States v. Gonzalez-Lopez, 548 U.S. 140, 14748
15 (2006) (holding that deprivation of a defendants right to counsel of choice
16 constitutes structural error). Courts, as a result, must recognize a presumption in
17 favor of [a defendants] counsel of choice. Wheat v. United States, 486 U.S. 153,
18 164 (1988); see also United States v. Turner, 594 F.3d 946, 951 (7th Cir. 2010)
19 ([T]he force of the core constitutional command requires that the court start from a
20 default position that gives effect to the defendants Sixth Amendment right to choose
21 his own counsel.). In seeking to disqualify a defendants chosen counsel, the
22 government bears a heavy burden of establishing that concerns about the integrity of
23 the judicial process justify the disqualification. United States v. Washington, 797
24 F.2d 1461, 1465 (9th Cir. 1986); see also Turner, 594 F.3d at 948 (vacating district
25 courts disqualification order where its analysis disregarded the presumption in
26 favor of the defendants chosen counsel and imposed what amounts to a per se rule
27 against joint representation).
28
18
[I]t is the job of th[e] court, first and foremost, to give effect to the
2 defendants constitutional right to the counsel of his choice. United States v. Salyer,
3 No. CR. S-10-061 LKK, 2011 WL 3665017, at *2 (E.D. Cal. Aug. 19, 2011). In
4 rejecting the governments motion to disqualify defense counsel, the court in Salyer
5 emphasized the realities at play: the defendant was facing a 60-page indictment
6 charging him with conspiracy, fraud, and RICO violations; and the firm that the
7 government sought to disqualify would add substantial resources to [defendants]
8 current legal team, especially given its specialty in complex, criminal anti-trust
9 cases. Id. The court thus credited the defendants claim that the ability to add [the
10 firm] to his defense team[] is critical to him in what he calls the fight of my life
11 and allowed him to proceed with his chosen counsel. Id.
12
The same result is compelled here. The government has charged Mr. Mazzo
13 with twenty-seven counts of securities fraud; Mr. Mazzos counsel of choice has
14 represented him in connection with the case for almost six years; Mr. Marmaro and
15 the Skadden team have been deeply immersed with Mr. Mazzo in the facts and law
16 of this complex case; Mr. Marmaro has substantial experience defending complex,
17 white collar cases like this one; and the case is likely to proceed to trial only months
18 from now. Despite the stark realities of the situationincluding the advanced
19 stage of the proceedings, the speculative (and spurious) nature of any purported
20 disqualifying conflict of interest, the fact that Mr. Mazzo has again affirmed that,
21 after consulting with independent counsel, he wishes to waive his right to conflict22 free counsel so that he can proceed with Skadden and Mr. Marmaro as his chosen
23 counsel, the reality that all of the parties at issue have waived any objection to
24 Skaddens representation of Mr. Mazzo, and the lack of any intentional wrongdoing
25 by anyonethe government seeks to thwart Mr. Mazzos free election of counsel
26 with a claim that it knows better than Mr. Mazzo how to safeguard the effectiveness
27 of his defense. The Court should not countenance the governments efforts to thwart
28 Mr. Mazzos Sixth Amendment rights. It should, instead, deny the governments
19
1 motion to disqualify and allow Mr. Mazzo to proceed to trial with his counsel of
2 choice.
3
Accordingly, three points are important in considering the governments
4 request that this Court deny Mr. Mazzo his chosen counsel. First, contrary to the
5 governments sweeping assertions, there is no disqualifying conflict of interest,
6 either due to Skaddens concurrent or successive representation of AMO and Mr.
7 Mazzo or to Skaddens purported self-interest conflict with Mr. Mazzo. Second, in
8 any event, Mr. Mazzo has knowingly and intelligently waived any conflict after
9 consulting with independent counsel, and is willing to confirm that waiver, if the
10 Court finds that it would be helpful or appropriate, in a formal proceeding. And,
11 third, the governments suggestion that this Court should deny Mr. Mazzo his choice
12 of counsel, regardless of conflict or waiver, based on a supposed general interest in
13 the administration of justice is unwarranted and unsound.
14
3.1
15
16
THERE IS NO CONFLICT OF INTEREST JUSTIFYING

DISQUALIFICATION OF MR. MAZZOS COUNSEL OF
CHOICE.
The government claims that there are two conflicts of interest that warrant
17 disqualifying Skadden: (1) Skaddens representation of Mr. Mazzo is adverse to its

18 former representation of AMO on similar matters (Supp. Br. at 49); and (2) Skadden
19 and Mr. Mazzo have divergent interests given Skaddens alleged need to protect its
20 reputation and defend against allegations of misconduct (id. at 4546). Because the
21 governments assertions are based on nothing more than [t]he hypothetical
22 possibility of conflicts of interest, which cannot result in disqualification of a
23 lawyer where there is neither an actual or apparent conflict of interest, the Court
24 should deny the governments motion. See Baker Manock & Jensen v. Superior
25 Court, 175 Cal. App. 4th 1414, 1424 (2009). (See also Hazard Decl. 6.)6 And,
26
27
The Court applies California law when determining whether a

disqualifying conflict of interest exists. In re Cnty. of L.A., 223 F.3d 990, 995 (9th
28 Cir. 2000).
20
1 again, it bears emphasis that both AMO and Mr. Mazzo have approved of Skaddens
2 representation of Mr. Mazzo and waived any conflicts of interest.
3
4
5
6
7
8
9
10
3.1.1 There Is No Disqualifying Conflict of Interest Arising Out of

Skaddens Prior Representation of AMO.
The government focuses on a purported conflict of interest stemming from
Skaddens prior representation of AMO. (See, e.g., Supp. Br. at 4749.) That
argument, whether based on a theory of concurrent representation or successive
representation, does not withstand careful analysis.
speculative concerns about Skaddens purported inability to adequately crossexamine AMO witnesses change the analysis.
3.1.1.1
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Nor do the governments
Skaddens Concurrent Representation of Mr. Mazzo

Conflict of Interest.
Courts may find a potentially disqualifying conflict of interest in cases of

concurrent representation of clients with adverse interests. Unless there is informed
written consent, an attorney cannot represent two or more clients at the same time
whose interests conflict. Great Lakes Constr., Inc. v. Burman, 186 Cal. App. 4th
1347, 1356 (2010); see also City and Cnty. of S.F. v. Cobra Solutions, Inc., 38 Cal.
4th 839, 846 (2006) (articulating default rule that [a]n attorney who seeks to
simultaneously represent clients with directly adverse interests in the same litigation
will be automatically disqualified).
Most fundamentally, however, the rule against concurrent representations does
not compel a finding of a disqualifying conflict of interest where the concurrent
representation at issue is no longer ongoing. 7 Courts prohibition of concurrent
representation of parties with adverse interests is rooted in the attorneys duty of
loyalty to each client and the concern that [j]oint representation of parties with
conflicting interests [will] impair[] each clients legitimate expectation of loyalty that
27
7
The Skadden law firm currently represents Abbott on unrelated

28 corporate matters.
21
1 his or her attorneys will devote their entire energies to [their] clients interests.
2 Burman, 186 Cal. App. 4th at 1355 (citation omitted); see also Gilbert v. Natl Corp.
3 for Housing Pships, 71 Cal. App. 4th 1240, 1256 (1999) (A client who learns that
4 his or her lawyer is also representing a litigation adversary, even with respect to a
5 matter wholly unrelated to the one for which counsel was retained, cannot long be
6 expected to sustain the level of confidence and trust in counsel that is one of the
7 foundations of the professional relationship.).
8
Because a clients confidence and trust in his counsels ability to advocate on
9 his behalf is no longer implicated when the attorney-client relationship has

10 terminated, no disqualifying conflict of interest exists when the concurrent
11 representation has ended. See, e.g., Pirelli Armstrong Tire Corp. Retiree Med.
12 Benefits Trust v. LaBranche & Co., 229 F.R.D. 395, 413 (S.D.N.Y. 2004) (As the
13 concurrent representation is not ongoing, no issue is presented here.); Shire Labs.
14 Inc. v. Nostrum Pharms., Inc., Civil Action No. 03-4436 (MLC), 2006 WL 2129482,
15 at *5 (D.N.J. July 26, 2006) ([T]here is no concurrent conflict because [counsel] is
16 not currently representing both Plaintiff and Defendant in the matter before this
17 Court or in another litigation.); MacArthur v. San Juan Cnty., NO. 2:00CV584K,
18 2001 WL 1806855, at *56 (D. Utah Mar. 6, 2001) (agree[ing] with counsel that
19 rule against concurrent representation applies only to conflicts between current
20 clients); Boston Scientific Corp. v. Johnson & Johnson Inc., 647 F. Supp. 2d 369,
21 373 (D. Del. 2009) (explaining that where counsels representation of plaintiffs
22 place[d] it in a position directly adverse to Wyeth, the conflict inquiry turns . . .
23 on whether Wyeth is currently [counsels] client). 8 The government does not
24
8
One exception to this general rule, which is not present here, is the so25 called hot potato
situation, in which a law firm terminates a representation in an
effort
to
cure
a
conflict.
See, e.g., State Farm Mut. Auto Ins. Co. v. Fed. Ins. Co., 72
26 Cal. App. 4th 1422, 1431
(1999) (explaining that an attorney cannot avoid the
automatic
disqualification
rule
to concurrent representation by unilaterally
27 converting a present client intoapplicable
a former client prior to the hearing on the motion for
This principle applies only where an attorney . . . cur[es] the
28 disqualification).
dual representation of clients by expediently severing the relationship with the
(cont'd)
22
1 dispute that Skadden no longer represents AMO on the issues relevant here. Because
2 the concurrent representation is not ongoing, there is no disqualifying conflict
3 stemming from Skaddens past simultaneous representation of Mr. Mazzo and AMO.
4 See Pirelli, 229 F.R.D. at 413.9
5
3.1.1.2
6
7
Skaddens Successive Representation of Mr. Mazzo

Conflict of Interest.
The government next argues that Skaddens representation of Mr. Mazzo after
8 having represented AMO constitutes a disqualifying conflict of interest. (Supp. Br.

9 at 49.) [W]here a former client seeks to have a previous attorney disqualified from
10 serving as counsel to a successive client in litigation adverse to the interests of the
11
________________________
(cont'd from previous page)
12 preexisting client. See, e.g., W. Sugar Coop. v. Archer-Daniels-Midland Co., --- F.

Supp. 3d ---, 2015 WL 690306, at *7 (C.D. Cal. Feb. 13, 2015); see also CQS ABS
13 Master Fund Ltd. v. MBIA Inc., No. 12 Civ. 6840(RJS), 2013 WL 3270322, at *11
(S.D.N.Y. June 24, 2013) ([A] bona fide independent basis for terminating a
14 representation does not trigger the disqualification requirement for concurrent
representations.). This exception is not implicated here.
15
9
The governments concurrent-representation argument fails for the
16 additional reason that Mr. Mazzos and AMOs interests are not adverse. Adversity
in the context of concurrent representation is found where an attorney
17 simultaneously represent[s] a client in one matter while representing another party
suing that same client in another matter. Certain Underwriters at Lloyds London v.
18 Argonaut Ins. Co., 264 F. Supp. 2d 914, 91819 (N.D. Cal. 2003). Mr. Mazzo and
AMO have never opposed each other in litigation. Nor is the governments
19 suggestion of a future suit between AMO and Mr. Mazzo based on Mr. Mazzos
purported insider trading sufficient to find a disqualifying conflict here. See Export
20 Dev. Corp. v. Uniforms for Indus., Inc., No. 88-CV-2496 (ARR), 1991 WL 10929, at
*4 (E.D.N.Y. Jan. 25, 1991) (finding that moving partys speculation concerning a
21 future dispute does not establish that joint representation will adversely affect either
client in this litigation). Any suggestion of adversity, moreover, is contradicted by
22 Abbotts continued employment of Mr. Mazzo for years following the AMO
acquisition and its consistent support of his defense in both this criminal case and the
23 parallel SEC proceedings. The government relies on an isolated passage from Judge
Nakazatos ruling on an assertion of work-product privilege as concluding, once and
24 for all, that AMO and Mr. Mazzo had adverse interests. (See, e.g., Supp. Br. at 49.)
But Judge Nakazatos ruling does not support a finding of adversity, for at least three
25 reasons. First, the ruling referred to adversity only in the context of the workproduct doctrine, not a motion to disqualify. Thus the passage has no bearing on the
26 issues before the Court. Second, Judge Nakazatos reasoningon an issue that was
not briefed by the partiesif taken to its logical conclusion, would mean that
27 adversity between a corporation and its executives is automatically triggered
whenever the government opens an inquiry into the corporations trading activities.
28 Third, this Court is not bound by dicta from a magistrate judge in a different case.
23
1 first client, the governing test requires that the client demonstrate a substantial
2 relationship between the subjects of the antecedent and current representations.
3 Flatt v. Superior Court, 9 Cal. 4th 275, 283 (1994).
In cases of successive
4 representation, counsels duty to preserve client confidences precludes an attorney

5 from later agreeing to represent an adversary of the attorneys former client where
6 counsel provided legal advice and services to the former client on a legal issue
7 that is closely related to the legal issue in the present representation and failed to
8 obtain informed written consent from the former client waiving the conflict.
9 Cobra Solutions, 38 Cal. 4th at 847 (citation omitted).
10
In this case, Skaddens successive representation of Mr. Mazzo and AMO
11 does not constitute a disqualifying conflict under the rule against successive
12 representations. First, the rule is not even implicated here, in light of the fact that
13 AMO could not reasonably have assumed that information given to Skadden was
14 unknown to Mr. Mazzo, given his role as the CEO of AMO and chief negotiator of
15 the Abbott transaction. Second, even assuming arguendo that the rule might apply in
16 this case, AMO has consented to Skaddens continuing representation of Mr. Mazzo.
17
(a)
18
AMO Could Not Reasonably Have Believed That

Mr. Mazzo Would Receive Confidential Information
From Skadden.
19
Where the potential conflict is one that arises from the successive
20 representation of clients with potentially adverse interests, the courts have

21 recognized that the chief fiduciary value jeopardized is that of client confidentiality.
22 Flatt, 9 Cal. 4th at 283. The conflict inquiry thus turns in large part on whether an
23 attorney possesses confidential information from the former client whose interests
24 are adverse to the current client and whom he represented in a substantially similar
25 matter. Although courts have adopted a presumption that an attorney in such a
26 situation possesses confidential information, that presumption applies only if the
27 subject of the prior representation put the attorney in a position in which confidences
28 material to the current representation would normally have been imparted to counsel.
24
1 Cobra Solutions, 38 Cal. 4th at 847. In other words, the substantial relationship test
2 is not implicatedand no disqualifying conflict existsunless the attorney was in
3 a position where he could have received information that his former client might
4 reasonably have assumed the attorney would withhold from his present client.
5 Christensen v. U.S. Dist. Ct. for Cent. Dist. Cal., 844 F.2d 694, 698 (9th Cir. 1988).
6
In Christensen, for instance, the Ninth Circuit applied this principle and
7 vacated the district courts order disqualifying a law firm (Wyman) from
8 representing the defendant.
Id. at 695.
Wyman had previously represented a
9 corporation (BHSL), and its current client (defendant Christensen) was a current
10 Wyman partner and former outside director of BHSL accused of mismanagement. Id.
11 at 69596. The Federal Savings and Loan Insurance Corporation (FSLIC), which
12 brought the action against former management groups of BHSL, sought to disqualify
13 Wyman from representing Christensen on the ground that he had previously
14 represented BHSL and was therefore barred from representing another client
15 (Christensen) in a position adverse to BHSL in substantially related litigation. Id. at
16 696.
17
Even assuming that the FSLIC could show adversity between BHSL and
18 Christensen and that Wyman had previously represented BHSL in similar matters,
19 the Ninth Circuit deemed those showings immaterial because the substantial
20 relationship
testand,
correspondingly,
the
rule
21 representationcould not be invoked in the first instance.
against
successive
[T]he substantial
22 relationship test is inapplicable when the former client has no reason to believe that
23 information given to counsel will not be disclosed to the firms current client. Id. at
24 699. Applying that principle to the facts of the case, the court held that, [d]ue to the
25 unique relationship between BHSL, Christensen, and Wyman, there are no BHSL
26 confidences that could be inappropriately disclosed by Wyman to Christensen. Id.
27 The court explained that BHSL necessarily knew that any information it gave to
28 Wyman would be conveyed to Christensen as a BHSL director and a senior partner
25
1 in the law firm and, as a result, Christensen ha[d] access to any confidences
2 previously revealed by BHSL. Id. at 698; see also id. at 699 (BHSL . . . could not
3 have believed that any information it gave Wyman would not be revealed to
4 Christensen.). Disqualification would thus be futile in terms of furthering the
5 purpose of the rule. Id. at 698.10
6
California courts have consistently applied the rationale of Christensen to
7 deny motions to disqualify where there was no possibility that counsel possessed
8 confidential information related to the matter at issue not previously known by its
9 current client. See, e.g., Cal. Serv. Emps. Health & Welfare Trust Fund v. Advance
10 Bldg. Maint., No. C-06-3078 CW, 2009 WL 593785, at *6 (N.D. Cal. Mar. 4, 2009)
11 (concluding that the party moving to disqualify ha[s] failed to demonstrate a
12 likelihood that counsel could have obtained confidential information regarding [the
13 subject matter of the litigation] which is different than the information possessed by
14 [its current client]); Forrest v. Baeza, 58 Cal. App. 4th 65, 82 (1997) (explaining
15 that application of the former client rule would be meaningless where it is
16 impossible to conceive of confidential information [counsel] could have received
17 from the corporation that is different from information he received from [the
18 corporate officers]). Other courts have embraced these same principles. See, e.g.,
19 Allegaert v. Perot, 565 F.2d 246, 250 (2d Cir. 1987) ([B]efore the substantial
20 relationship test is even implicated, it must be shown that the attorney was in a
21 position where he could have received information which his former client might
22
10
The court in Christensen declined to express [an] opinion on the

23 situation where a firm attempts to represent an outside director who is not a member
of the firm in litigation against the corporation. 844 F.2d at 699 n.8. But California
24 courts later made clear that the Christensen rule applies where a director is not a
member of the litigating firm. See Advance Bldg., 2009 WL 593785, at *2, *56
25 (finding that CEO of company possessed same confidential information regarding
the information as company itself); Forrest, 58 Cal. App. 4th at 82 (same with
26 respect to officers and directors of company). And, in any event, Mr. Mazzo was not
simply an outside director of AMO, but rather its CEO and involved in its day-to27 day management. See In re Syntex Corp. Sec. Litig., 855 F. Supp. 1086, 1100 (N.D.
Cal. 1994) (By definition, outside directors do not participate in the corporations
28 day-to-day affairs.).
26
1 reasonably have assumed the attorney would withhold from his present client.);
2 Gurniak v. Emilsen, 995 F. Supp. 2d 262, 273 (S.D.N.Y. 2014) (denying motion to
3 disqualify where, among other things, [d]efendant has not demonstrated that
4 [former client] could reasonably have assumed that [counsel] would withhold this
5 information from [current client], to whom [former client] apparently confided the
6 relevant information); Cohen v. Acorn Intl Ltd., 921 F. Supp. 1062, 1064 (S.D.N.Y.
7 1995) (denying defendants motion to disqualify where [defendant] ha[s] no basis
8 for believing that any information given to the law firm would be withheld from
9 [p]laintiff); Neiman v. Local 144, Hotel, Hospital, Nursing Home & Allied Health
10 Servs. Union, AFL-CIO, 512 F. Supp. 187, 190 (E.D.N.Y. 1981) (similar).
11
Applying Christensen to this case, the substantial relationship test is
12 inapplicable because AMO has no reason to believe that information given to

13 [Skadden] relating to the matters at issue in this case would not already have been
14 disclosed to Mr. Mazzo. See 844 F.2d at 699. Put differently, given Mr. Mazzos
15 role as the CEO and Chairman of the Board at AMO, [h]e has access to any
16 confidences previously revealed by [AMO]. See id. at 698. Mr. Mazzo, as the
17 CEO of AMO, was the chief negotiator with regard to the transaction with Abbott;
18 attended every significant meeting between AMO and Abbott; and, as Chairman of
19 the Board, attended every board meeting at which the transaction was discussed.
20 (Govt Ex. 35 6.) Mr. Mazzo thus had full access to and knowledge of the
21 confidences AMO shared with Skadden. (Id.) Given Mr. Mazzos involvement
22 with the Abbott transaction, the burden shifts to the government to demonstrate a
23 likelihood that Skadden possesses confidential information regarding the
24 transaction that Mr. Mazzo does not possess. See Advance Bldg., 2009 WL 593785,
25 at *6. This the government has not even attempted to do. Because there are no
26 [AMO] confidences that could be inappropriately disclosed by [Skadden] to [Mr.
27 Mazzo], [d]isqualification would . . . be futile in terms of furthering the purpose of
28
27
1 the rule [against successive representation, which is to protect client confidentiality.

2 See Christensen, 844 F.2d at 69899.11
3
4
5
6
7
8
9
10
11
12
13
14
15
16
(b)
AMO Has Consented to Skaddens Representation

of Mr. Mazzo.
Even assuming arguendo that a conflict based on successive representation

otherwise exists, AMOs consent to Skaddens representation of Mr. Mazzo
precludes disqualification. As an initial matter, the Court has already explained that
the necessary parties are informed of potential conflicts and . . . neither AMO nor
Abbott has ever objected to this representation. (Govt Ex. 36 (August 10, 2011
Order).)
That statement remains entirely accurate today.
The government has
pointed to no new facts that justify a different conclusion.12

Moreover, AMOs consent is clear. As the Ninth Circuit has explained,
successive representation of adverse parties in substantially related matters is
permissible when the former client . . . expressly or impliedly waive[s] his objection
and consent[s] to the adverse representation. Trust Corp. of Mont. v. Piper Aircraft
Corp., 701 F.2d 85, 87 (9th Cir. 1983). In Piper Aircraft, the plaintiff filed suit
17
11
The decision in Trone v. Smith, 621 F.2d 994 (9th Cir. 1980), is readily
18 distinguishable. There, the court concluded that there was a reasonable probability
that the former client provided confidential information to the attorneys. Id. at 999.
19 It then stated in dicta that counsel would still need to be disqualified [e]ven if it
were stipulated that no confidences were communicated in the first professional
20 employment, while noting that no such stipulation has been made by the parties
here. Id. at 1000. But the courts analysis was grounded in its finding that
21 counsels first representation of [former client] was sufficiently extensive that
institutional standards of the legal profession impose upon the attorneys a continuing
22 obligation to the client not to change sides after the representation has ceased. Id.
No such circumstances are found here, where Skadden has not change[d] sides and,
23 indeed, AMO and Mr. Mazzo have never been involved in litigation against one
another. More fundamentally, Trone was decided before Christensen, which
24 announced the rule that compels finding no disqualifying conflict of interest based
on successive representation in this case.
25
12
As an additional independent reason, the question of Mr. Mazzos
26 representation and choice of counsel in Mr. Mazzos criminal case must be based on
Mr. Mazzos perspective and situation, including the possibility of conflicts from his
27 perspective. In other words, any breach of the duty of loyalty to AMOwhich there
has not beenhas no bearing on the governments motion, absent a significant
28 consequence to Mr. Mazzo (which the government has failed to establish).
28
1 against the defendant, seeking recovery from a fatal plane crash. Id. at 86. The
2 defendants counsel (Jardine) notified the plaintiff that it had previously represented
3 the decedent in a divorce and several business matters, which gave the firm access to
4 confidential information regarding the decedents financial status. Id. In response,
5 counsel for plaintiff informed Jardine that they would contact the firm if the plaintiff
6 objected to its continued representation of the defendant. Id. The plaintiff raised no
7 objection until almost two-and-a-half years later, when it moved to disqualify the
8 Jardine firm. Id. at 8687.
9
The Ninth Circuit concluded that the plaintiff had consented to Jardines
10 representation of the defendant. It first observed that a former client who is entitled
11 to object to an attorney representing an opposing party on the ground of a conflict of
12 interest but who knowingly refrains from asserting it promptly is deemed to have
13 waived that right. Id. at 87. Pointing out that the plaintiff had waited to object to
14 Jardines continued representation for more than two-and-a-half years after
15 becoming aware of the potential conflict, the court held that [plaintiffs] failure to
16 object within a reasonable time, coupled with the long delay in filing a motion to
17 disqualify, constitute a de facto consent to the Jardine firms continued
18 representation of [defendant] and a waiver of its right to object. Id. at 88; see also
19 Wild Game NG, LLC v. Wongs Intl (USA) Corp., No. 3:05-CV-635-LRH (RAM),
20 2006 WL 3434379, at *4 (D. Nev. Nov. 29, 2006) (denying motion to disqualify
21 where plaintiff waited more than a year after finding out about potential conflict to
22 raise an objection).
23
Here, AMO (through its successor Advanced Medical Optics and Abbott) has
24 consented to Skaddens representation of Mr. Mazzo. Sarah Weil, Division Counsel,

25 Commercial Litigation at Abbott Laboratories, wrote a letter stating that Abbott
26 Medical Optics and Abbott Laboratories have not objected to this representation [i.e.,
27 Skaddens representation of Mr. Mazzo individually] and have consented to Mr.
28 Mazzos choice of individual counsel. (Mazzo Ex. F, (July 14, 2011 email from
29
1 Sarah Weil to Richard Marmaro.) This express consent counsels finding that any
2 conflict of interest arising from Skaddens successive representation of Mr. Mazzo
3 has been waived and cannot serve as the basis for disqualification. See Piper
4 Aircraft, 701 F.2d at 87.
5
In any event, AMO also has waived any right to object to Skaddens
6 representation of Mr. Mazzo by declining to seek disqualification in the more than

7 six years since its first knowledge of the representation. As Mr. Mazzo has stated, he
8 discussed his retention of Skadden with AMO officials in early 2009 and, at that time,
9 they were aware that Skadden was representing both AMO and Mr. Mazzo
10 individually. (Mazzo Ex. C 56.) Not only that, Abbotts insurer (or, before that,
11 AMOs insurer) has been regularly paying Skadden for its work on Mr. Mazzos
12 behalf since September 2009. (Mazzo Ex. G (Decl. of Matthew David Umhofer in
13 Support of Second Supp. Mem. in Oppn to Govts Mot. for a Judicial Inquiry Into
14 Conflicts of Interest) 3; see also Mazzo Ex. C 7.) AMOs decision not to object
15 within a reasonable timefar greater than the two-and-a-half years giving rise to
16 waiver in Piper Aircraftconstitute[s] a de facto consent to [Skaddens] continued
17 representation of [Mr. Mazzo] and a waiver of its right to object. See Piper Aircraft,
18 701 F.2d at 88. (See also Hazard Decl. 6.)13
19
20
21
22
23
24
25
26
27
28
13
The governments successive-representation argument fails for the

additional reason that Mr. Mazzos and AMOs interests are not adverse. Adversity
in the context of successive representation means serving as counsel to a successive
client in litigation adverse to the interests of the first client. Flatt, 9 Cal. 4th at
283 (emphasis added). Here, however, the government cannot demonstrate how
AMO has any interest in the outcome of the Mr. Mazzos criminal case, let alone an
adverse one. The governments musings about a hypothetical future action between
AMO and Mr. Mazzo are not sufficient to establish adversity. See Export Dev.
Corp., 1991 WL 10929, at *4 (finding that moving partys speculation concerning a
future dispute does not establish that joint representation will adversely affect either
client in this litigation).
30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3.1.1.3
The Government Has Not Shown that Skaddens

Prior Representation of AMO Will Affect Its CrossExamination of Witnesses at Mr. Mazzos Trial and
Create a Disqualifying Conflict of Interest.
Without specifying the witnesses whom it will call or the type of confidential
information that Skadden has obtained from them, the government nevertheless
argues that Skaddens continued representation of Mazzo in this case still presents
very real conflicts issues when it comes to Skaddens cross-examination of former
corporate officers of AMO. (Supp. Br. at 49.) According to the government,
Skadden would not be free to use information obtained in confidential
communications with AMO when cross-examining AMOs former executives such
that its cross-examinations of adverse witnesses at trial would be potentially
affected by divided loyalties and Skadden might be required to curtail these
examinations to the detriment of its current client. (Id. (emphasis added).) The
governments conjectural argument fails on multiple levels.
First, the governments assertion does not pass muster because it fails to
provide the requisite level of specificity, including which former executives it will
call; what those executives will testify about; what confidences Skadden has learned
from them; and, most critically, how Skaddens purported need to curtail any
cross-examination actually will affect its representation of Mr. Mazzo. A prior
representation [of an adverse witness] is not a per se basis for requiring counsel to be
excused, and [a] mere possibility of a conflict of interest arising from an inability
to adequately cross-examine that former client does not compel disqualification.
United States v. Penn, 151 F. Supp. 2d 1322, 1324 (D. Utah 2001). Disqualification
is not warranted where the government makes no showing that in this instance the
representation of defendant would be [a]ffected because [a] speculative conflict is
not sufficient to overcome the defendants Sixth Amendment right to counsel of
choice. Id.; see also United States v. Bolivar, No. CR 12-0128 JB, 2012 WL
3150430, at *14 (D.N.M. July 20, 2012) (finding no conflict present in this case
where the government could point to no specific scenarios in which [counsels]
31
1 loyalties might be compromised, and raised only the possibility that [former client]
2 might testify and [counsel] might cross-examine him).
3
In this case, the governments argument amounts to, at most, [a] speculative
4 conflict . . . not sufficient to overcome [Mr. Mazzos] Sixth Amendment right to

5 counsel of choice. See Penn, 151 F. Supp. 2d at 1325. The government has offered
6 no details regarding the witnesses it plans to present, Skaddens prior relationships
7 with those witnesses, or how Skaddens cross-examination of those witnesses would
8 be affected by Skaddens prior representation of AMO. An argument grounded in
9 [a] mere possibility of a conflict of interest is insufficient for the recusal of defense
10 counsel. Id. at 1324. Not only that, the government cannot point to [any] specific
11 scenarios in which [Skaddens] loyalties might be compromised, Bolivar, 2012 WL
12 3150430, at *14, nor show[] that in this instance the representation of [Mr. Mazzo]
13 would be [a]ffected, Penn, 151 F. Supp. 2d at 1325. Its argument should thus be
14 rejected on this basis alone. (See Hazard Decl. 7.)
15
Second, the government ignores the fact that Mr. Mazzo knows about all
16 material aspects of the Abbott and AMO transaction as it relates to this case and, as a
17 result, there is no risk of Skadden using confidential information obtained from
18 AMO against it at trial. See supra pp. 2428. This, too, dooms its argument. See
19 Bolivar, 2012 WL 3150430, at *14 (rejecting conflict argument based on prior
20 representation of possible government witness where, among other things, it does
21 not appear that [counsel] acquired any information from [former client] that she
22 would use against him in favor of [current client]); see also United States v. Huynh,
23 No. 08cr2288 BTM-1, 2009 WL 799406, at *6 (S.D. Cal. Mar. 24, 2009) ([A]n
24 attorney is not prohibited from cross-examining a former client where his prior
25 representation of the client was unrelated or the attorney restricts his questioning to
26 the public record.). (See also Hazard Decl. 7.)
27
Third, AMOs decision not to join in the governments motion strongly
28 militates against a finding that disqualification of [Skadden] is mandated. United

32
1 States v. Gehl, 852 F. Supp. 1135, 1147 (N.D.N.Y. 1994) (denying motion to
2 disqualify where neither the current client nor the former client objected to counsels
3 continued representation, leaving the court only with the governments speculative
4 fears that [counsel] will cross-examine [former client] about matters to which
5 [former client] claims an attorney-client privilege); see also Huynh, 2009 WL
6 799406, at *5 (noting that former client did not join in the governments motion to
7 disqualifywhich was based in part on the prospect of counsels need to cross8 examine a former clientand citing with approval precedent from other courts that
9 the potential for conflict [is] less significant where the former client has not moved
10 for disqualification). With neither AMO nor Mr. Mazzo objecting to Skaddens
11 representation of Mr. Mazzoand, indeed, affirmatively waiving any objections
12 the court is left only with the governments speculative fears that [Skadden] will
13 cross-examine [former AMO executives] about matters to which [AMO] claims an
14 attorney-client privilege. Gehl, 852 F. Supp. at 1148. This scenario is far from a
15 disqualifying conflict.14
16
Fourth, and finally, Skadden has suggested to the government that, if cross-
17 examination of former AMO officials nevertheless is a problem, Skadden is prepared

18 to have other counsel conduct those examinationsa far more restrained measure
19 than the extreme sanction of disqualification. See, e.g., Wal-Mart Stores, Inc. v.
20 Vidalakis, No. 07-0039, 2007 WL 4468688, at *4 (W.D. Ark. Dec. 17, 2007)
21 (Several federal courts have . . . approved the use of local counsel or co-counsel to
22
23
24
25
26
27
28
14
Even if there were a conflict of interest stemming from Skaddens need

to cross-examine former AMO executives, such a conflict is consistently found
waivable. See United States v. VanHoesen, No. 06-CR-411 (LEK/DRH), 2007 WL
2089692, at *5 (N.D.N.Y. July 19, 2007) (concluding that defense counsels prior
representation of six potential government witnesses did not give rise to a
disqualifying conflict of interest if defendant waived his right to conflict-free
counsel); see also Yee, 2006 WL 3050827, at *1 ([T]he only potential harm is to
[plaintiffs], and they have concluded that the risk of such harm is outweighed by the
benefits of continuing with counsel of their choosing. It is not for defendants or this
Court to interfere with that choice.). As explained below, see infra pp. 38-43, Mr.
Mazzo is entitled to and will waive his right to conflict-free counsel.
33
1 cross-examine former clients of primary counsel as an effective and appropriate cure

2 of any potential conflict and/or to safeguard against the misuse of the clients
3 confidential information.). The government has not responded to this suggestion.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3.1.2 There Is No Disqualifying Conflict of Interest Between

Skadden and Mr. Mazzo.
In addition to a supposed conflict of interest based on Skaddens prior
representation of AMO, the government asserts that there is a conflict between
Skadden and Mr. Mazzo.
(Supp. Br. at 4547.)
The government claims that
Skadden has put[] its own interests above Mazzos interests by ma[king] serial
misrepresentations to this Court to remain as counsel of record and hide a
disqualifying conflict.
(Id. at 45.)
According to the government, Skaddens
purported involvement in the submission of Mr. Mazzos declarationswhich, the

government claims, mistakenly suggest that Skadden was acting solely on Mazzos
behalf in February and March 2009renders them unable to counsel Mazzo
regarding them. (Id. at 4546.) The government asserts that Skadden and its
attorneys are faced with having to defend against misconduct claims and consider
reputational harms, which inevitably put their interests in conflict with Mazzos
interests and compel disqualification. (Id. at 46.) The governments argument is
hyperbolic and inaccurate, and fails as a matter of both fact and law.
As an initial matter, the actual circumstances here belie the governments
assertion that there is a disqualifying conflict between Skadden and Mr. Mazzo based
on Skaddens purported need to defend against misconduct claims and consider
reputational harms.
(Id.)
In detailed fashion, each of the mistakes that Mr.
Waxman made or caused to be made throughout this litigation has already been fully
disclosed and corrected. (Govt Ex. 50.) Skaddens approach to this situation,
including expressing its sincere regret for the circumstances, reveals the folly in the
governments assertion that Skadden plans to mount a vehement defense against
misconduct claims or reputational harm[] (Supp. Br. at 46) at the expense of Mr.
Mazzo. Rather, Skadden has already accepted the harm to its reputation caused by
34
1 Mr. Waxmans mistakes before the Court. (See, e.g., Mazzo Ex. H at 21:12-14
2 (transcript of February 24, 2015) (Mr. Marmaro: Im not here to make any excuses
3 for what has transpired. There clearly were some errors on our part.).) And, indeed,
4 the attorney who made or caused to be made the mistakes at issue (Mr. Waxman) no
5 longer works at the firm and has withdrawn from this case. The actual record in the
6 case thus establishes that the premise of the governments argumentthat Skaddens
7 supposed interest in self-preservation conflicts with Mr. Mazzos interestsis
8 fundamentally flawed. (See Hazard Decl. 9.)
9
Similarly, the governments wildly off-base suggestion that Skadden enlisted
10 Mazzo in efforts to further its interests in remaining as Mr. Mazzos counsel (Supp.
11 Br. at 4546) cannot withstand scrutiny. The government has pointed to no false
12 statements in Mr. Mazzos declarations. For good reason. There are none. Mr.
13 Mazzo stated in his declarations his understanding that Mr. Waxman (and Skadden)
14 represented him individually and interviewed Mr. DeCinces on behalf of him.
15 (Govt Ex. 31 23; Mazzo Ex. C 2.) He did not state that Skadden represented
16 only him (and not AMO) during February and March 2009 or that Skadden
17 conducted the interview of Mr. DeCinces only on his behalf (and not AMOs behalf),
18 as the government claims (Supp. Br. at 4546).
And even if Mr. Mazzos
19 declarations can be read as the government asserts (which they cannot be), the
20 contours of Mr. Mazzos view of his arrangement with Skadden is to be judged from
21 Mr. Mazzos reasonable perspective. See, e.g., United States v. Ruehle, 583 F.3d
22 600, 607 (9th Cir. 2009) (accepting district courts finding that corporate officer
23 reasonably believed that [firm] represented him individually even though it also
24 represented the corporation and, as a result, approach[ing] the parties arguments
25 from the perspective that [firm] had attorney-client relationships with both
26 [corporation] and [officer] individually); Bird v. PSC Holdings I, LLC, Civil No.
27 12-CV-1528W(NLS), 2014 WL 1389327, at *3 (S.D. Cal. Apr. 8, 2014) (The
28 primary inquiry in determining the existence of an attorney-client relationship is
35
1 whether the client would have a reasonable expectation that an express or implied
2 agreement existed.) (citations omitted).15
3
Most fundamentally, as it does throughout its arguments, the government pays
4 little attention on this issue to the importance of Mr. Mazzos right to select his
5 counsel. By characterizing the mistakes at issue as attempts to hide a disqualifying
6 conflict and to ensure that Skadden remained as counsel for Mr. Mazzo by putting
7 its own interests above Mazzos interests (Supp. Br. at 45 (emphasis added)), the
8 government, in casting itself as the protector of Mr. Mazzos interests, overlooks Mr.
9 Mazzos Sixth Amendment right to retain Skadden as his counsel of choice. See,
10 e.g., Gonzalez-Lopez, 548 U.S. at 14748 (The right to select counsel of ones
11 choice . . . has been regarded as the root meaning of the constitutional guarantee.).
12
Indeed, the government has failed even to articulate how, exactly, a purported
13 desire to protect against reputational harm and defend against allegations of

14 misconduct would affect Skaddens representation of Mr. Mazzo to such a
15 significant degree that the Court should override Mr. Mazzos constitutionally
16 protected choice of counsel. This dooms the governments argument, as the cases
17 cited in support of the supposed disqualifying conflict between Mr. Mazzo and
18 Skadden make clear.
19
Unlike the governments abstract generalities here, in United States v. Elliot,
20 463 F.3d 858 (9th Cir. 2006) (cited in Supp. Br. at 46), the Ninth Circuit emphasized
21 the specific, concrete, demonstrable harm from the conflict between attorney and
22 client. The court emphasized that multiple conflicts of interest (including counsels
23
24
25
26
27
28
15
Puzzlingly, the government attempts to support its conflict argument by

stating that Skadden felt compelled to send four Skadden lawyers to represent the
firms own interests at the depositions of Waxman and Morrison. (Supp. Br. at 46
n.12.) But the government cannot have it both ways by admonishing Skadden for a
lack of care regarding Mr. Waxmans making or causing to be made erroneous
statements to the Court while criticizing it for exercising too much care in
safeguarding the integrity of the deposition process. Skadden sent multiple lawyers
to the depositions to underscore its diligence in ensuring that all necessary
disclosures were made and all mistakes corrected.
36
1 desire not to be sanctioned for violations of ethical rules) resulted in counsels

2 inability to save a key witnesss testimony from being struck. Id. at 86567. The
3 striking of the testimony was clearly prejudicial to [defendant], as it prevented the
4 jury from considering evidence that contradicted the governments star witness and
5 precluded the defendant from offering the backbone of [his] defense, which
6 greatly diminished whatever prospects there were for an acquittal. Id. at 866. The
7 governments broadsides in this case offer nothing remotely comparable or specific
8 from the purported conflict.16
9
The governments attempted reliance on United States v. Perez, 325 F.3d 115
10 (2d Cir. 2003) (cited in Supp. Br. at 47), is similarly unavailing. As an initial matter,
11 the court there emphasized as its guiding principle that, [w]here the right to counsel
12 of choice conflicts with the right to an attorney of undivided loyalty, the choice as to
13 which right is to take precedence must generally be left to the defendant and not be
14 dictated by the government. Id. at 125 (emphasis added). And in the very narrow
15 category of cases that are exceptions to that general rule, the court emphasized the
16 profound effect that counsels conflict had on the effectiveness of his representation
17 of the client. In one case, counsel had been implicated by a government witness in
18 heroin importation and his self-interest in avoiding criminal charges or reputational
19 damage was so powerful as to affect virtually every aspect of [counsels]
20 representation of the defendant, and to be of a different character than other
21 conflicts. Id. at 126 (citation omitted; alteration in original); see also id. (Advice
22 as well as advocacy [would be] permeated by counsels self-interest, and no rational
23 defendant would knowingly and intelligently be represented by a lawyer whose
24
25
16
Elliot is inapposite for other reasons: counsel there had more than one
conflict of interest, and he repeatedly refused to respond to the courts inquiries
26 about his potential conflicts of interest and their effect on the proffered testimony
because of a concern[] about concealing his own misconduct. See Elliot, 463 F.3d
27 at 866. Here, by contrast, the government has not shown a single disqualifying
conflict of interest (let alone more than one), and Skadden has worked diligently to
28 expose and correct any mistakes previously made.
37
1 conduct was guided largely by a desire for self-preservation.) (citation omitted;

2 alteration in original). In the second case that the Second Circuit summarized,
3 defense counsel faced the loss of a $10 million retainer agreement if he pursued the
4 most logical line of defense. Id. at 12627. The court concluded that [t]he conflict
5 generated by counsels self-interest was so severe as to give rise to the distinct
6 possibility . . . that, at each point the conflict was felt, [counsel] would sacrifice
7 [defendants] interests for those of the [party with whom he had the retainer
8 agreement]. Id. at 127 (first alteration in original).
9
In stark contrast to those cases, the government here has identified not one
10 example of how Skaddens supposed need to protect its own interests would affect
11 its representation of Mr. Mazzolet alone how the conflict is so powerful as to
12 affect virtually every aspect of [the] representation. Id. at 126. The governments
13 unsupported, unexplained hypothetical conflict is far from sufficient to disqualify Mr.
14 Mazzos chosen counsel. See Shaffer v. Farm Fresh, Inc., 966 F.2d 142, 145 (4th
15 Cir. 1992) ([D]isqualification of a litigants chosen counsel . . . may not be rested
16 on mere speculation that a chain of events whose occurrence theoretically could lead
17 counsel to act counter to his clients interests might in fact occur.).
18
3.2
19
Even if there were a conflict of interest bearing on his representation, Mr.
MR. MAZZO HAS WAIVED ANY CONFLICT OF INTEREST.
20 Mazzo is entitled toand, after consultation with independent counsel, has agreed
21 towaive his right to conflict-free counsel to preserve his right to chosen counsel.
22 Hornbook law provides that Mr. Mazzo may waive the conflicts of interest the
23 government contends exist in this case and proceed with Skadden as his counsel.
24 Waiver thus provides an independent basis for the Court to deny the governments
25 motion to disqualify.
26
The Ninth Circuit has made clear that [t]rial courts may allow an attorney to
27 proceed despite a conflict if the defendant makes a voluntary, knowing, and

28 intelligent waiver. United States v. Martinez, 143 F.3d 1266, 1269 (9th Cir. 1998).
38
1 Authorizing a defendants waiver of his right to conflict-free counsel can allow the
2 defendant to vindicate his Sixth Amendment right to counsel of his choice. For a
3 waiver to be knowing and intelligent, the defendant must have been sufficiently
4 informed of the consequences of his choice. Lockhart v. Terhune, 250 F.3d 1223,
5 123233 (9th Cir. 2001). But the Ninth Circuit does not require that a defendant
6 predict that particular dilemmas will present themselves. Id. (citations omitted).
7
Whether a defendant has made a valid waiver of his Sixth Amendment rights
8 depends upon the particular facts and circumstances surrounding that case,
9 including the background, experience, and conduct of the accused. Martinez, 143
10 F.3d at 1269 (citation omitted). The Second Circuit, for its part, has adopted a three11 part process to ensure that a defendants waiver of conflict-free counsel is valid. See
12 United States v. Iorizzo, 786 F.2d 52, 59 (2d Cir. 1986) (relying on United States v.
13 Curcio, 680 F.2d 881 (2d Cir. 1982)). Under that model, the district court is required
14 to (i) advise the defendant of the dangers arising from the particular conflict; (ii)
15 determine through questions that are likely to be answered in narrative form whether
16 the defendant understands those risks and freely chooses to run them; and (iii) give
17 the defendant time to digest and contemplate the risks after encouraging him or her
18 to seek advice from independent counsel. Id.; see also Martinez, 143 F.3d at 1269
19 (finding waiver valid where district court informed defendant that he was entitled to
20 a conflict-free attorney, that he could receive outside legal advice about waiving the
21 conflict, and that he could ask questions; defendant stated that he wished to retain
22 [counsel] despite the conflict; and [i]t appear[ed] that [defendant] understood the
23 court and was not coerced). (See also Supp. Br. at 5253 (advocating similar
24 inquiry).)
25
Here, the Court should accept Mr. Mazzos waiver, which he is prepared to
26 confirm in open court. Any purported conflict at issue here is not, as the government
27 suggests, unwaivable. (Id. at 5152.) As the government readily acknowledges (id.
28 at 51), it must meet a severe burden to prove that any supposed conflict in this case is
39
1 unwaivable. Attorney-client conflicts are waivable unless they are so egregious

2 that no rational defendant would knowingly and voluntarily desire the attorneys
3 representation. United States v. Dhaliwal, 468 F. Appx 666, 668 (9th Cir. 2012)
4 (quoting Martinez, 143 F.3d at 1270); see also United States v. Scarpacci, 731 F.
5 Supp. 2d 341, 347 (S.D.N.Y. 2010) (If the court discovers that the attorney suffers
6 from a severe conflictsuch that no rational defendant would knowingly and
7 intelligently desire the conflicted lawyers representationthe court is obliged to
8 disqualify the attorney.). This is because [w]here the right to counsel of choice
9 conflicts with the right to an attorney of undivided loyalty, the choice as to which
10 right to take precedence must generally be left to the defendant and not be dictated
11 by the governmenteven if the defendants choice of counsel may sometimes
12 seem woefully foolish to the court. Perez, 325 F.3d at 12526 (citation omitted).
13
Although the Ninth Circuit has not had occasion to expound on the standard
14 for determining whether a conflict is unwaivable, it has relied on the Second

15 Circuits well-developed case law on the waivability inquiry. See Dhaliwal, 468 F.
16 Appx at 668; Martinez, 143 F.3d at 1270.
The Second Circuit, in turn, has
17 recognized a very narrow category of cases in which conflicts are deemed

18 unwaivable. Perez, 325 F.3d at 126. These unwaivable conflicts have a pervasive,
19 divisive effect on an attorneys loyalties and so impair that attorneys effectiveness
20 as to require disqualification per se. VanHoesen, 2007 WL 2089692, at *4. Such
21 conflicts are those which substantially implicate an attorneys self-interest and place
22 that self-interest in opposition to the best interests of the defendant. Id.
23
The court in Perez described two examples of the very narrow category of
24 cases in which [it has] held attorney conflicts to be unwaivable. 325 F.3d at 126.
25 In the first, United States v. Fulton, 5 F.3d 605 (2d Cir. 1993), a government witness
26 in the prosecution for conspiracy to possess and import heroin had implicated
27 defense counsel in related heroin importation. Perez, 325 F.3d at 126. The court
28 found an actual conflict of interest so severe as to amount to per se ineffective
40
1 assistance given that the accusation against defense counsel meant that he needed
2 to be concerned not only with the interests of the defendant but also with the
3 attorneys own personal reputation, and more than that, the potential that he himself
4 might be accused of a crime. Id. As the court explained, [t]he attorneys self5 interest in avoiding criminal charges or reputational damage was so powerful as to
6 affect virtually every aspect of [counsels] representation of the defendant and
7 would permeate[] counsels [a]dvice as well as advocacy. Id. The court
8 therefore concluded that [g]iven the breadth and depth of this conflict, there
9 could be no meaningful waiver. Id. (citations omitted).
10
In the second case that the court summarized, United States v. Schwarz, 283
11 F.3d 76 (2d Cir. 2002), defense counsel represented a police officer accused of
12 assault. Perez, 325 F.3d at 126. Counsel had recently secured a $10 million retainer
13 to represent the Policemens Benevolent Association (PBA), which was the
14 defendant in a related civil suit by the alleged victim. Id. In light of the civil suit, it
15 would have been against the interest of the PBA for the jury in the criminal trial to
16 find that there was a second officer involved in the assault. Id. Moreover, the terms
17 of counsels retainer agreement with the PBA gave the PBA the right to cancel the
18 retainer agreement on thirty days notice.
Under this arrangement, the court
19 explained, counsels powerful interest in his own financial self-preservation gave

20 him a significant incentive to protect the interests of the PBA, even where they
21 conflicted with the interests of [defendant]. Id. at 12627. Counsels conflict thus
22 precluded him from pursuing the compelling defense that two officers were
23 responsible for the assault and, instead, forced him to present a defense that only one
24 officer was responsible for the crime, which was not supported by any evidence in
25 the record. Schwarz, 283 F.3d at 92, 94. The Second Circuit concluded that this
26 conflict was so severe as to give rise to the distinct possibility . . . that, at each
27 point the conflict was felt, [counsel] would sacrifice [defendants] interests for those
28 of the PBA. Perez, 325 F.3d at 127 (alterations in original). As a result, no
41
1 rational defendant in [defendants] position would have knowingly and intelligently

2 desired [that attorneys] representation. Id.; see also United States v. Murray, No.
3 CR-12-0278 EMC, 2013 WL 942514, at *35 (N.D. Cal. Mar. 11, 2013) (finding
4 conflict unwaivable where the attorney had a personal stake in the allegedly tainted
5 funds and was thus implicated in the fraudulent activity charged at trial, and the
6 attorney was a potential witness).
7
In contrast to the extraordinary circumstances catalogued in Perez, lesser
8 conflicts, such as an attorneys representation of two or more defendants or his prior

9 representation of a trial witness, are generally waivable. Perez, 325 F.3d at 127. In
10 VanHoesen, for instance, the court deemed counsels conflicts waivable where
11 counsel had previously represented the co-defendant and six of ten potential
12 government witnesses. 2007 WL 2089692, at *5. Because there was no contention
13 that [counsel] has any conflicting financial interest and no claim or evidence that he
14 is affected by any other type of self-interest which might impair his representation of
15 [defendant], the court found the conflicts limited to the realm of potential conflicts
16 consistently found waivable. Id.
17
So too here. The government does not seriously contend that the purported
18 conflicts at issue here are so egregious that no rational defendant would knowingly
19 and voluntarily desire the attorneys representation. Dhaliwal, 468 F. Appx at 668.
20 Nor can it. The supposed conflict arising from Skaddens former representation of
21 AMO is considered a lesser conflict[] . . . generally [found] waivable. Perez, 325
22 F.3d at 127; see also VanHoesen, 2007 WL 2089692, at *45. As outlined above,
23 see supra pp. 34-38, the alleged conflict between Mr. Mazzo and Skadden does not
24 substantially implicate [Skaddens] self-interest and place that self-interest in
25 opposition to the best interests of [Mr. Mazzo], VanHoesen, 2007 WL 2089692, at
26 *4. Most fundamentally, the government has identified no purported conflict that
27 would affect Mr. Mazzos ability to present a defense in any material way. See
28 supra pp. 20-38.
42
The Court should, therefore, apply the presumption in favor of [Mr. Mazzos]
2 counsel of choice, Wheat, 486 U.S. at 164, and allow him to waive any conflicts.
3 Mr. Mazzo has communicated through counsel to the government that he has
4 consulted with independent counsel that he still wishes Skadden to remain as his
5 counsel of choice, and that he is willing to provide any further conflict waivers. (See
6 Supp. Br. at 4 n.1; Yang Decl. 10; Mazzo Decl. 1718.) Mr. Mazzo is prepared
7 to execute any appropriate waivers in open court. See Martinez, 143 F.3d at 1269.
8 Such an inquiry would remove any doubts (if there are any) about the validity of
9 Skaddens representation of Mr. Mazzo and compel denial of the governments
10 motion to disqualify.17
11
3.3
12
13
THE GOVERNMENTS SUPPOSED CONCERNS ABOUT THE

INTEGRITY OF THE JUDICIAL PROCESS DO NOT SUPPORT
DISQUALIFICATION.
Disregarding Mr. Mazzos clear ability and intention voluntarily, knowingly,
14 and intelligently to waive any conflict, the government also launches an effort to
15 deprive Mr. Mazzo of his chosen counsel regardless of conflict or waiver. Citing
16 nebulous concerns about the integrity of the judicial process, the government
17 urges the Court to exercise its supervisory powers to disqualify Marmaro and all
18 other Skadden attorneys from continuing to represent Mazzo in this case. (Supp. Br.
19 at 4041.) But the government cannot meet its heavy burden to establish that the
20 extreme measure of disqualification, with its grave harm to the defendant, is
21 necessary to preserve the integrity of the judicial process.
22
As an initial matter, the governments argument proceeds from the flawed
23 premise that Skaddens serial misrepresentations to the Court and government

24
25
17
Given the extensive nature of the conflict proceedings to date and Mr.
Mazzos review of the governments disqualification argument, Mr. Mazzo does not
26 believe that it is necessary or appropriate for Skadden to produce unredacted copies
of all notes, e-mails, correspondence, billing records, and other documents relating
27 to the matters highlighted in the governments brief. (See Supp. Br. at 5354.) But
should the Court deem further information necessary to its resolution of this motion,
28 Mr. Mazzo and Skadden will endeavor to provide it.
43
1 reflect a purposeful effort to achieve tactical advantages in this case and the SECs
2 case. (Id. at 43.) The governments assertion is patently false, as explained above.
3 See supra pp. 11-12. And, here again the government focuses (without any factual
4 basis) on Skaddens purported desire to keep itself from being disqualified and to
5 continue to bill[] millions of dollars while wholly ignoring Mr. Mazzos
6 interestsprotected by the Sixth Amendmentto maintain Skadden as his counsel
7 of choice. There is simply no evidence in the extensive factual record of this case or
8 the parallel civil case to support an inference that (1) Skadden made intentional
9 misrepresentations, or that Mr. Marmaro made the mistakes that Mr. Waxman has
10 acknowledged; or (2) the basis for any of the admitted mistakes was pecuniary or
11 anything other than inadvertence. The assertion that Mr. Marmaro intentionally
12 misrepresented facts to the Court in an effort to obtain millions for himself is far
13 beyond the pale, given the lack of a scintilla of evidence supporting the outrageous
14 assertion.
15
Even putting the governments wild factual distortions to one side, the
16 government is unable to meet its heavy burden of establishing that concerns about
17 the integrity of the judicial process justify the disqualification. See Washington,
18 797 F.2d at 1465. Courts must be vigilant when evaluating claims that amorphous
19 concepts like integrity and public confidence compel disqualification, as it is
20 easy to express vague concerns about public confidence in the integrity of the
21 judicial process. Id. at 1466. As the cases on which the government relies make
22 clear, the government can discharge its heavy burden only by pointing to concrete,
23 egregious misconduct that jeopardizes the defendants right to receive an effective
24 defense and a fair trial. The government has fallen far short of meeting its burden in
25 this case. (See Hazard Decl. 1011.)
26
Indeed, each case cited by the government in support of its argument involves
27 an extraordinary example of attorney misconduct and an attendant debilitating effect

28 on the defendants ability to present his case. A review of these cases demonstrates
44
1 the weight of the burden that the government must meet here to disqualify Mr.
2 Mazzos counsel of choice, and how far the government is from carrying that burden.
3
In United States v. Stites, 56 F.3d 1020 (9th Cir. 1995) (cited in Supp. Br. at
4 40), the defendant (Stites) wished to be represented by two lawyers (Brooks and
5 Mesereau). Brooks had previously represented Stitess sister (Dark), who pleaded
6 guilty for her role in the scheme for which Stites was charged. Id. at 1023. During
7 her representation of Dark, Brooks had sought to lessen Darks culpability by
8 emphasizing Stitess guiltincluding referring to Stites as one of the biggest cons
9 this system has ever seen and injecting her personal view that it makes me angry to
10 see that people are able to so pervert our system of justice. Id. The Ninth Circuit
11 affirmed the district courts disqualification of Brooks. It first noted that there was
12 an actual conflict based on Brookss prior representation of Dark. Id. at 1025. The
13 court also observed that disqualification was warranted because Brooks could not,
14 in the very same . . . prosecution, tell the court that Stites was a liar, a thief, and the
15 mastermind of the massive fraud charged by the government and then represent the
16 same person contending that he was innocent of the crimes charged. Id. Mesereau,
17 for his part, had visited the courthouse during the trial of Stitess co-defendants,
18 where he asked a juror about the case and remarked to the juror that U.S. Attorneys
19 do not always tell the truth. Id. at 1024. The juror reported the incident to the trial
20 judge, who questioned Mesereau at a hearing and concluded that Mesereaus conduct
21 was unethical, improper, and possibly criminal. Id. The trial judge subsequently
22 denied Stitess request to substitute Mesereau for one of Stitess attorneys who had
23 died, and the Ninth Circuit affirmed. Id. at 1026. The Ninth Circuit found that
24 barring Mesereau from representing Stites did not violate Stitess right to counsel of
25 his choice, emphasizing that Stites committed his crimes with an extraordinary
26 absence of awareness of the ethical duties of his profession, chose his counsel . . .
27 with an equal indifference to ethical conduct of his counsel, and so could not
28
45
1 complain because a well-informed trial court would not let a lawyer who had
2 already grossly misbehaved in the case return to the scene of his misbehavior. Id.
3
The two other cases on which the government relies include equally
4 remarkable examples of egregious misconduct and negative effects on the

5 defendants ability to secure a fair trial. In United States v. Collins, 920 F.2d 619
6 (10th Cir. 1990) (cited in Supp. Br. at 40), the court affirmed the disqualification of
7 the defendants attorney (Dickstein).
Dickstein filed ten pretrial motions:
one
8 advanced the hackneyed tax protester refrain that federal criminal jurisdiction only
9 extended to the District of Columbia, United States territorial possessions and ceded
10 territories, blithely ignored governing law, and defie[d] credulity; a second was
11 legally frivolous because Dickstein lacked any arguable basis in fact or law to
12 make the argument; a third reflected either Dicksteins material misrepresentation
13 of the law or gross ignorance so glaring that the trial court was entitled to
14 conclude that a defendant charged with tax evasion would not receive effective
15 assistance of counsel from that attorney; and a fourth failed to disclose known
16 dispositive contrary authority. Id. at 62932. The Tenth Circuit concluded that
17 Dickstein transformed legal argument from an intellectual process aimed at the
18 derivation of the correct legal principle to a carnival of frivolity aimed at
19 disseminating defendants political views.
Id. at 633.
When combined with
20 Dicksteins past reputation for hijacking judicial proceedings onto his tax protester
21 bandwagon, the district court legitimately concluded that Dicksteins disregard for
22 governing ethical principles would continue throughout the case, robbing the trial of
23 its elementary truth-seeking purpose and depriving defendant of the effective
24 assistance of counsel. Id. at 63334.
25
Similarly, in United States v. Walton, 703 F. Supp. 75 (S.D. Fla. 1988), the
26 court disqualified defense counsel (Yavitz) after a co-defendant alleged that Yavitz
27 had schemed with the defendants and a co-defendants lawyer to obtain false
28 testimony to present at trial as a defense strategy. Id. at 76. After noting that the
46
1 government would likely be allowed to offer evidence about the scheme and
2 Yavitzs role in that scheme at trial, the court disqualified Yavitz because the jury
3 would immediately perceive such impropriety, and the inherent conflicts involved in
4 such a situation after hearing about Yavitzs machinations and the damage would be
5 irrevocable. Id. at 77.
6
The decisions in Stites, Collins, and Walton demonstrate that the government
7 meets its heavy burden to disqualify counsel on the basis of judicial integrity and
8 fairness only where it is able to point to concrete instances of extreme misconduct
9 and an attendant effect on the ability of the defendant to present a defense. The
10 situation here is markedly different from those rare instances in which courts have
11 found that the need to maintain public confidence in the judiciary overrode a
12 defendants Sixth Amendment right to his chosen counsel.
13
As an initial matter, the misconduct alleged by the government in this case is
14 nowhere near as egregious as that at issue in the three cases cited by the government.
15 Critically, all three cases are hallmarked by intentional wrongdoing, which is
16 completely absent from this case. Indeed, while regrettable, the mistakes at issue
17 here regarding the timing of Skaddens representations of two clients and the
18 existence of documentation of interview notes are a far cry from the kind of
19 misconduct implicated in Stites, Collins, and Waltonrepresenting a defendant after
20 previously calling him (in the same criminal proceedings) the mastermind, a thief
21 and a fraud, one of the biggest cons this system has ever seen, and expressing
22 personal outrage to see that people are able to so pervert our system of justice
23 (Stites); seeking to engage in ex parte discussions with a juror about the strength of
24 the governments case in related proceedings and attempting to manipulate the juror
25 into believing that government attorneys frequently lie (Stites); repeatedly filing
26 frivolous motions as part of a plan of hijacking judicial proceedings onto [counsels]
27 taxpayer bandwagon with the effect of robbing the trial of its elementary truth28
47
1 seeking purpose (Collins); and scheming with co-defendants and another attorney to
2 fabricate a fictitious defense and suborn perjury at trial (Walton).
3
Moreover, perhaps most importantly, the misconduct alleged here does not
4 implicate the fairness of the upcoming trial or the ability of Mr. Mazzo to defend
5 himself and receive the effective assistance of counsel. The government catalogues
6 what it views as Skaddens purported misconduct through the litigation, claiming
7 that its adverse impact . . . is hard to overstate. (Supp. Br. at 44.) Notably,
8 however, all of that supposed adverse impact is backward-looking; the government
9 never once suggests that the misconduct will jeopardize the fairness or integrity of
10 the upcoming trial. Rather, as demonstrated throughout this brief, the mistakes made
11 or caused to be made by Mr. Waxman have had and will have no adverse effect on
12 Mr. Mazzos ability to present his defense. See, e.g., supra pp. 31-34, 38. In
13 contrast, disqualifying Skadden at this late junctureover Mr. Mazzos strenuous
14 objectionwould pose a severe risk to his ability to defend himself at the imminent
15 trial with the result of jeopardizing his liberty.
16
The absence of any adverse effect on the fairness of the trial or Mr. Mazzos
17 right to the effective assistance of counsel stands in stark contrast to the cases on
18 which the government relies. In Stites, allowing one attorney (Brooks) to represent
19 the defendant adversely affected the defense both because Brooks owed a duty of
20 loyalty to her former client, which precluded her from using confidences from the
21 prior representation that would be necessary to effectively represent the defendant,
22 and because the requisite drastic change in argument (from calling her current client
23 one of the biggest cons this system has ever seen to proclaiming his innocence)
24 strained credulity. 56 F.3d at 102426. Allowing a second attorney (Mesereau) to
25 represent the defendant risked jeopardizing his defense through the possibility that he
26 might again try to manipulate the jury through ex parte communications and slander.
27 See id. at 1024, 1026. In Collins, letting the defendant proceed with his attorney
28 would have robb[ed] the trial of its elementary truth-seeking purpose and depriv[ed]
48
1 defendant of the effective assistance of counsel. 920 F.2d at 63334. And in

2 Walton, failure to disqualify the defendants attorney would have irrevocably
3 damaged his defense by allowing presentation of evidence that the defendant (along
4 with his attorney) sought to present false testimony in an effort to secure acquittal.
5 703 F. Supp. at 7677.18
6
As the Ninth Circuit has cautioned, [i]t is easy to express vague concerns
7 about public confidence in the integrity of the judicial process. Washington, 797
8 F.2d at 1466. The governments amorphous claims that allowing Mr. Mazzo to
9 proceed with his chosen counsel will somehow jeopardize the fairness or integrity of
10 these proceedings utterly fail to cross the chasm separating vague concerns from
11 meeting the heavy burden of establishing that concerns about the integrity of the
12 judicial process justify . . . disqualification, id. at 1465. The governments failures
13 on this score are all the more striking when juxtaposed against the extraordinary
14 circumstances in Stites, Collins, and Walton and when viewed through the prism of
15 Mr. Mazzos right to select counsel of [his] choicethe root meaning of the
16 constitutional guarantee, Gonzalez-Lopez, 548 U.S. at 14748. Accordingly, the
17 Court should reject the governments request that this Court deny Mr. Mazzo the
18 counsel of his choice, regardless of conflict or waiver.
19
20
21
22
23
18
The governments invocation of California Rule of Professional

24 Responsibility 5-200 (describing the duty of candor) in the disqualification analysis
lacks merit. (Supp. Br. at 43.) The mistakes at issue here were those of one partner
25 who is no longer with the firm, and they were not intentional. In fact, when Mr.
Waxmans mistakes were discovered, Mr. Mazzos lead counsel, Mr. Marmaro,
26 candidly and quickly brought them to the attention of the government and the Court.
In any event, the law is well settled that a violation of the California Rules of
27 Professional Conduct does not automatically compel disqualification. Crenshaw v.
MONY Life Ins. Co., 318 F. Supp. 2d 1015, 1020 (S.D. Cal. 2004); see also Hetos
28 Invs., Ltd. v. Kurtin, 110 Cal. App. 4th 36, 4647 (2003) (same).
49
1 4.
CONCLUSION
For the foregoing reasons, the Court should deny the governments Motion to
3 Revisit Judicial Inquiry Into Conflicts of Interest Affecting Defendant James V.

4 Mazzo.
5 DATED: June 29, 2015
6
7
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

Richard Marmaro
Clifford M. Sloan
8
9
10
11
By:
/s/ Richard Marmaro

Richard Marmaro
Attorney for Defendant
JAMES V. MAZZO
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
50

USA v. JAMES V. MAZZO, DOUGLAS V. DECINCES, DAVID L. PARKER, AND F. SCOTT JACKSON

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

USA v. JAMES V. MAZZO, DOUGLAS V. DECINCES, DAVID L. PARKER, AND F. SCOTT JACKSON

Uploaded by

Copyright:

Available Formats

Case 8:12-cr-00269-AG Document 435 Filed 06/29/15 Page 1 of 57 Page ID #:9630

1 RICHARD MARMARO (Bar No. 091387)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NO.: 8:12-cr-00269(B)-AG

(1) DEFENDANT JAMES V.

JAMES V. MAZZO, DOUGLAS V.

(2) DECLARATION OF JAMES V.

(4) DECLARATION OF BRIAN J.

(5) DECLARATION OF RICHARD

(6) DECLARATION OF GEOFFREY

(7) DECLARATION OF CLIFFORD

Hon. Andrew J. Guilford

July 13, 2015

Case 8:12-cr-00269-AG Document 435 Filed 06/29/15 Page 2 of 57 Page ID #:9631

FACTUAL AND PROCEDURAL BACKGROUND....................................4

The Mistakes at Issue ............................................................................5

Actions Taken To Correct The Record .................................................6

Skaddens Representation Of Mr. Mazzo Commenced Between

Corrections To The Governments Statement Of Facts......................11

2.4.1 The Mistakes at Issue................................................................11

2.4.2 Attribution of Mr. Waxmans Mistakes to Mr. Marmaro ........12

2.4.3 Peter Morrisons Testimony .....................................................12

2.4.4 Diane Biagiantis Declaration...................................................14

2.4.5 Mr. Mazzos May 12, 2011 Declaration And Waiver..............14

2.4.6 This Courts August 10, 2011 Order ........................................15

Skadden Remains Mr. Mazzos Counsel Of Choice ..........................16

THERE IS NO CONFLICT OF INTEREST JUSTIFYING

AMO Could Not Reasonably Have Believed

AMO Has Consented to Skaddens

Case 8:12-cr-00269-AG Document 435 Filed 06/29/15 Page 3 of 57 Page ID #:9632

3.1.1.3 The Government Has Not Shown that Skaddens

3.1.2 There Is No Disqualifying Conflict of Interest Between

MR. MAZZO HAS WAIVED ANY CONFLICT OF INTEREST. ..38

THE GOVERNMENTS SUPPOSED CONCERNS ABOUT

Case 8:12-cr-00269-AG Document 435 Filed 06/29/15 Page 4 of 57 Page ID #:9633

Case 8:12-cr-00269-AG Document 435 Filed 06/29/15 Page 5 of 57 Page ID #:9634

Case 8:12-cr-00269-AG Document 435 Filed 06/29/15 Page 6 of 57 Page ID #:9635

1 United States v. Curcio,

Case 8:12-cr-00269-AG Document 435 Filed 06/29/15 Page 7 of 57 Page ID #:9636

1 United States v. Washington,

Case 8:12-cr-00269-AG Document 435 Filed 06/29/15 Page 8 of 57 Page ID #:9637

The governments motion to disqualify is based on mistakes made by an ex

3 Skadden partner regarding the existence of exculpatory notes from an interview of a

14 counsel of choice in defending against the criminal charges brought by the

Case 8:12-cr-00269-AG Document 435 Filed 06/29/15 Page 9 of 57 Page ID #:9638

In its Supplemental Brief in Support of Governments Motion to Revisit

6 Judicial Inquiry Into Conflicts of Interest Affecting Defendant James V. Mazzo

Most prominently, without any basis in the record, the

Citations to Govt Ex. refer to the exhibits to the governments

Case 8:12-cr-00269-AG Document 435 Filed 06/29/15 Page 10 of 57 Page ID #:9639

Notably, moreover, the government would

12 obtain a very significant tactical advantage were it to succeed in disqualifying Mr.

15 conflicts of interest posited by the government might apply to Skaddens

A defendants waiver may be

22 overridden only if the government is able to demonstrate a conflict sufficiently

Case 8:12-cr-00269-AG Document 435 Filed 06/29/15 Page 11 of 57 Page ID #:9640

Accordingly, the Court should deny the governments motion to disqualify

FACTUAL AND PROCEDURAL BACKGROUND

In addition to a complete response to the government in this opposition,

Case 8:12-cr-00269-AG Document 435 Filed 06/29/15 Page 12 of 57 Page ID #:9641

1 by Skadden to correct the record; (3) Skaddens concurrent representation of Mr.

The Mistakes at Issue